Liz, Rebecca, Monica and Alison recap the case, Kennedy v. Bremerton, discussed in Episode 5 and review the decision handed down by the Supreme Court at the end of June. Later in the episode they’re joined by the pod’s very first guest, Rachel Laser, President and CEO of Americans United, who represented Bremerton at the high court. Rachel joins for a conversation about being a woman leader in the fight to keep state/church separate, and what our future holds after a dismal June. It’s a long episode, but worth every minute!
Rebecca Markert: Welcome back to We Dissent, the podcast with four secular woman attorneys discussing religious liberty in federal and state courts and our work to keep religion and government separate. I’m Rebecca Markert with the Freedom From Religion Foundation, and one of your co-hosts.
Monica Miller: And I’m Monica Miller, the legal director and senior counsel at the American Humanist Association. And also one of your co-hosts.
Alison Gill: I’m Alison Gill with American Atheists and also one of your co-hosts.
Liz Cavell: And I’m Liz Cavell counsel at FFRF. And in this episode, we’re gonna be discussing the decision in the Kennedy versus Bremerton case, which you’ll remember we talked about in a previous episode that was back in episode five, and it was one of the many cases that we were watching that came down this summer. It was a really important decision and it is going to really affect the work that all four of us do so we thought it warranted an episode on its own. And also we’ll be doing something a little different because this will be our first episode where we will have a guest. So later in the episode, we’ll be joined by Rachel Laser. She’s the president and CEO of Americans United for Separation of Church and State. They are a coalition organization that does similar work to the groups that we all work for. AU represented the school district at the Supreme Court in this case, the Bremerton School District in Washington state. So we’re very excited to have her. She is another powerhouse woman attorney, and she’ll join our conversation later, but first we’re gonna recap the case decision. So we previewed this as the case involving the praying coach, the coach who wanted to pray on the 50 yard line for all to see and refused to stop when the district asked him to and an employment struggle ensued. So the issue that was up before the court was whether the district’s decision decision to suspend him and ultimately not renew his contract, Joe Kennedy, the high school football coach, after he knelt at midfield and insisted on doing this and refused to stop, did that violate his rights under the First Amendment, his free speech and free exercise rights. And of course we got a 6-3 decision. Gorsuch wrote this opinion and it came out pretty much the way we predicted. Right?
Rebecca Markert: The school district was found to have violated Coach Kennedy’s rights under the Free Exercise Clause and also the Free Speech Clause. The court decided that his prayer was private speech and that it was not attributable to the school district and therefore also not impermissible government coercion of the students who were in his presence and that the decision could not be justified on the grounds that his suspension was essential to avoid an Establishment Clause violation. Again, this was not a decision that we were completely surprised by. We knew once this case was accepted for review by the Supreme Court, that this was an outcome that was surely to come. What were your impressions of the majority opinion?
Alison Gill: I think it’s remarkable how bad this decision was. Like rarely do you see like a worst case sort of decision. I guess Dobbs is a good example of a worst case sort of decision. And this is not too far off, except in this field, there was not only the decision itself there was the misapplication of facts in the decision and also this sort of trail of what I’m calling poisonous breadcrumbs, pointing out all the areas where the court is like basically urging you know, far right activists to sort of bring cases and things like heightened protection for religious speech or animus protections that don’t require strict scrutiny, they just automatically win if there’s animus, apparently we’ll get more into that. I’m sure. But it’s just like remarkable.
Monica Miller: Yeah. That was actually gonna be my sort of off the cuff thing was just this idea that the separation of church and state concept is so flipped on its head now that we don’t, we no longer care about the coercion aspect of the children. We care about the poor teacher or the poor coach or the poor, you know, police department and what they’re doing. And so to say that his speech was doubly protected to distort the facts A) to then, you know, give this idea of double protection, zero protection for the school children, that the case that’s once said we care deeply about. And then the third thing of course, is that they overrule the, the test that we all rely on. So we’re all now scrambling and rechanging our letters and that we’ve relied on for decades and so forth. Um, so there’s like practical concerns. There’s like, just like the Roe case. There’s the, there’s the, like, you messed up the rule of law. And then there’s thirdly, like what you’ve actually held is really, really screwed up too because now you’re inviting coaches throughout the country and teachers to really test the boundaries of what double protection of religious speech means.
Rebecca Markert: I also really hate that in this case, they really accepted this gas lighting narrative from Coach Kennedy and his team and just sort of took those false and deceitful lies that they put forth in the facts and just accepted them to be true. And I mean, let’s be honest, we’ve been living in a world where we’ve had alternative facts become like the norm and you know, we have a certain reality and other people have other realities and it’s been really hard to sort of live and navigate in this new world order. But the fact that one of our institutions that we have all grown up to revere and like assume is doing justice would just accept blatant lies to get to a particular decision is so disheartening, not only as an American citizen, but also as a lawyer, I think our profession is really suffering from this. But I think in this case, one of the interesting things too is, is probably one of the only times we’ve ever seen pictures in the dissent.
Liz Cavell: Receipts!
Rebecca Markert: Right, right. Like it happened, here’s the pictures, Justice Sotomayor started her dissent with a huge picture of Coach Kennedy at the 50 yard line, surrounded by athletes and students engaging in prayer. But that was the set of facts that the court, the majority believed to be a private and personal prayer. And we talked about this ad nauseam in our episode a couple of weeks ago, but just that they really did not only adopt this set of facts, but really just kind of like really put the pedal to the metal, like yeah, we are moving forward with these facts and this is the law is so upsetting and really puts, I think, every litigator on edge. Like how do we litigate cases now?
Liz Cavell: Right. If you listen to our Kennedy versus Bremerton episode, a couple episodes back, you’ll remember that we talked about what we’re all alluding to now in the decision, the counsel for Coach Kennedy made this strategy decision on appeal to basically just argue this version of facts that was not what actually happened below. So they described the coach’s conduct on appeal as personal private prayer that didn’t involve students, that didn’t happen, you know, when the coach was supposed to be coaching that it was just his private religious expression. And we were also just horrified and scandalized by attorneys arguing that on appeal. And just knowing that they were basically lying to the court. You heard us talk about it in the episode as like rule number one for lawyers is you don’t lie to the court. And now this is actually a strategy being used by these far right litigators and being accepted as valid by the Supreme Court to justify their ends, which is finding for the persecuted Christian litigant.
Alison Gill: Not just justified, the court is really just putting its stamp on this whole process. Right? I think this case is very emblematic of the idea that, I mean, the test they eventually put forward is the historical understandings and practices test, which is infinitely malleable, just like this case and the facts in it have been infinitely malleable. So it’s just like, you know, this idea that truth does not exist and the court has whatever facts it needs to have to make its, you know, preferred ruling is just, it just seems to be the way it is. It’s incredibly frustrating.
Monica Miller: It really is. And it also kind of ignores the fact that there are judges that are not gonna be ruling consistent with these decisions. Like, and so you are gonna still get like splintered rulings, I think throughout the country. And one of the Supreme Court’s fundamental roles, like one of the reasons the Supreme Court exists is to unify the law of the land and make it so that, that if you lived in Texas, for instance, that you would have the same kind of core rights as one in California. But now that’s not the case both as a woman and as you know, like a constitutional litigant, because I think no doubt you are going to still have some district court rulings, you know, out in Oregon or maybe California, I don’t mean to like stereotype here, but that will still end up, you know, saying like, no, because we care about church state separation and it’s just gonna end up with like this hodgepodge. Like they, the whole idea of, you know, knocking down the Lemon Test that the test that we use, it was grounded on like it’s a historical and it’s it applicable. Like we can’t even apply it. It’s so confounding. We don’t know how to do a three part test. It’s so easy. I literally taught it to eighth graders at constitution day in Vermont when I was at Vermont law school and my late constitutional law teacher, she selected me and this other woman Delana who was with the Christian group. And we both got along fantastically because it was before the world started all hating each other. And the two of us went in together and cogently taught the Lemon Test two little eighth graders and they understood why it was so important the government is neutral when it comes to religion, why they should not play favorites. We asked them what, why, what do you think a secular effect is? What does it mean for the government to not play favorites when it comes to one religion or another? And they would say it’s because of how you’re born. You shouldn’t be treated differently. It’s because of how your family is, like they had all these really good answers. And yet the Supreme Court is saying, this is too difficult for us. We don’t understand so we’re gonna make up this new test. That’s supposedly a lot easier for people to understand and it’s called history and tradition and that’s gonna somehow answer contemporary questions about church state separation that didn’t exist at the time of the founding. And you’re gonna expect more uniformity to come out of that?
Rebecca Markert: I think you hit the nail on the head there too, because this decision is only going to breed more litigation because it’s so confusing. They overruled the Lemon Test, but replaced it with this history test that really doesn’t provide a good framework for the lower courts. And just this morning in our office, we were talking about the lower courts and how they’ve uniformly applied Lemon in all sorts of cases involving Establishment Clause and how it was a workable test. You got some decisions in our favor and some decisions not in our favor. And it just boggles my mind that we have these justices who are like, this is untenable, it’s unworkable and leads to chaos. If you review the lower court decisions in the Establishment Clause jurisprudence, it’s not all over the place necessarily, where it’s all over the place is at the Supreme Court. Everything that Gorsuch writes about the Lemon Test in this opinion was also foreshadowed in the Shurtleff opinion in his concurring opinion, in the Christian flag case out of Boston, he wrote a lot of this, which is why we were so interested in that case. And we kind of saw that something like that was gonna be coming, particularly if he was going to be the one who was penning this decision.
Alison Gill: Regarding this new test, there seems to be this assumption they make that coercion would fall afoul of it. That coercion would be affected. Now in this case, we probably argue that there was coercion at least indirect coercion, right? And there it’s in the record, but just putting that aside, I’m not sure where that idea comes from. Like how do we know in history? Like what is the coercion in history they’re thinking of that they can point to. I just, I’m curious right where we’re getting this, where are they getting this idea from.
Monica Miller: Alison, I am so glad you asked that because like, this is what I wrote out in my Ocala brief. We knew Lemon was off the chopping block. So in writing this 11th Circuit brief that I did before this case came about was really arguing why a police prayer vigil would violate the Establishment Clause under the hypothetical history and traditions tests that our opponents were then arguing for, which now is the law. And so I looked at all the reasons for the Establishment Clause existing, like the evils of the Establishment Clause. And it was like, you know, government funding. It was, you know, not causing divide, like divide among communities. And like there was all these things, but coercion really finds its home in the Free Exercise Clause. And we use it in the "Establishment Clause land" only to say that the government cannot coerce you into, to religious practice without running afoul of the Establishment Clause. Because that means it’s unquestionably acting with a religious motive, which would violate the purpose test. It would unquestionably acting with a religious effect. The flip side of that is that you are now distorting a religion that doesn’t want your hands on it, that’s why the Baptists are on our side. And we’ve got a lot of Methodists set, right briefs on our side. amdnd we have a lot of Christians that are very pro church state separation. because they understand that once the government gets its hands on it, you don’t control your message anymore. So, all of this is to say that I made a literal list of like the reasons we have the Establishment Clause based off of the founders make no, you know, confusion here. The coercion is not a free, it is not an Establishment Clause concern as much as it is in the Free Exercise Clause where we’re concerned with you distorting someone’s religious beliefs.
Liz Cavell: I also think it remains to be seen whether or not these six justices when they talk about coercion that would still violate the Establishment Clause or the First Amendment more broadly. Whether they mean in any way in indirect type of coercion and they explicitly use the words direct coercion as what they found lacking in this case. And to my mind, these six justices are so radical and they have said over and over on occasion, that what they think violates the Establishment Clause is cabin to something that is direct coercion. In other words, a law that is passed that says, we all have to go to church on Sunday or you know, we are a Christian state or city.
Alison Gill: Or Like, or you’re strapped to a chair and you have your eyes open. Like something like that maybe might, might be coercion. I mean, who knows? And
Monica Miller: I mean even more to the point, Justice Thomas doesn’t even think the Establishment Clause applies to the states. So in Justice Thomas’s land, theoretically, California could pass a law that straps your hands to a bus and flies you over to the church of Zion. And you have to go, you know, maybe it violates some due process clause in the federal constitution. But I think justice Thomas’s view is that the Establishment Clause says Congress and therefore doesn’t apply to the states.
Rebecca Markert: And that’s why I think that we don’t have to wonder, you know, is indirect coercion still a thing. I think as soon as they get a case to dismiss that, they’re going to, I mean, I think that’s, that’s where this court, these six justices wanna lead us, that only direct coercion is a violation of the Establishment Clause. And you know, I mean, we’ve been dealing with this since I started at FFRF too. I mean, I’ve had lawyers argue to me like nobody’s forcing them to look at that Ten Commandments display. Nobody’s forcing you to kneel at the foot of the cross on public property. That’s what they want the test to be. And I think when I mentioned before that this case is just breeding more litigation. That is one area that we’re going to see cases come up to the court so they can take that out too, because the justices on the court right now do want to make coercion the test.
Alison Gill: And that’s what we’re gonna see across the country. We’re gonna see advocates pushing religion, especially into school in every way possible. And our ability collectively as lawyers in this area to stop, it is going to be extremely limited frankly, moving forward with these weak tests, with this uncertainty in the law. So, I mean, we’re just gonna see just a ton of this and maybe hopefully we’ll see some public backlash around it because it’s gonna feel over the news. Hopefully.
Monica Miller: Yeah. Well I was gonna say I have the good fortune of having my case be the first court of appeals case to be remanded post Kennedy for determination of how Kennedy is gonna apply to an Establishment Clause case, which happens to not be in a public school context, but in the police context, which I think I’ve talked about in previous episodes, but, you know, a remand is actually not the worst thing because it, you know, my actual biggest concern was that I’d win. And then that would mean that they would take it up to the Supreme Court and that would be an instant case where they could say direct coercion is required and your clients voluntarily went to this vigil. They knew that there might be prayer at this prayer vigil and they shouldn’t have gone, even if they wanted to help stop crime, they had a duty to stay home, you know, and I feel like that’s the test that Gorsuch would push that’s the test that others would push. And so my duty as a litigator is to make sure that the district court adheres to the law, but also that somehow the Supreme Court doesn’t take this case or we have a different Supreme Court by the time it matriculates up.
Rebecca Markert: Well, that kind of leads me to one of the quotes that I hated the most in this decision.
Liz Cavell: Yes, I like this game.
Rebecca Markert: So I mean to Monica’s, to Monica’s point the idea of, you know, they voluntarily went and were offended. I mean, he does say, um, at one point in the decision, you know, offense does not equate to coercion. So it kind of goes to what you were talking about there. But before that, just a few sentences before that he gets very paternalistic and says; "But learning how to tolerate speech or prayer of all kinds is ‘part of learning how to live in a pluralistic society,’ a trait of character essential to ‘a tolerant citizenry.’"
Liz Cavell: Mansplainer in chief.
Monica Miller: This is, yeah, this is what I want to do next for yoga today because I really like it, it makes my blood boil to read stuff like that. Because of the, exactly the flip floppiness that happens internally within like just two paragraphs and what we know about the ultra sensitivity of this like poor coach over in Kennedy’s land of like, oh, he’s just this public servant. That’s serving the school children and he, this great person and all he wants to do is these prayers. And like you guys are offending his conscience, you know, but then when we’re over in the atheist land is like, oh, you guys need to buck up like and get some sensitivity and come into a pluralistic society where we’re gonna shove one brand of Christianity down your throat.
Rebecca Markert: It’s just so frustrating to be lectured about tolerance from this group of advocates that really are just like trying to push the law so much in their favor and are not being tolerant of diverse views. I just, I hated it so much. I actually wrote in the margins OMG like, but I also am not surprised though, because I feel like this is, this has come up in previous cases. I remember having like an equally visceral reaction to something that came up in the town of Greece case where they basically were saying like atheists, if you’re so offended, why don’t you go and stand outside while this counsel prays, we are not offended. If you decided to leave, like you’re not, you know, insulting us. It’s just so frustrating.
Alison Gill: I mean, I’d be curious to see how they reacted if they stood up and said, oh well there’s no, I mean had a long speech about why there’s no, God, I mean, I would be really interested to see that.
Monica Miller: So talk about putting pictures in brief. So my 11th Circuit brief, I keep alluding to, I actually stuck photographs in and I stuck photographs in of Sarah Ray’s prayer because I said underpinning the legislative prayer exception, which was once the exception, this idea of history and traditions being the test was born out of a case involving legislative prayer that traced back to the time of the founding and the founding fathers delivered prayers at the first, you know, Congress meeting. And it was based on the idea that like, we, we are not bigots and we can hear the faith, you know, a prayer in someone else’s idiom and back then maybe that was the case, but it’s not the case now case in chief, look at what happens with when a Satanist gives a prayer in Florida. When one of our clients, David Suho gave a prayer in his idiom and he was wearing, you know, his traditional satanic garb, which is, you know, the grim Reaper outfit and he is in Florida and you see all these Christians uproar and it’s a town meeting, it’s a normal counsel meeting and there’s police, you know, it’s chaotic.
Monica Miller: And so I wanted the court to see, this is the divisiveness that you’re inviting into your Florida communities when you’re allowing these divides. This is not, the premise is, is proven to be not the case anymore. At least not in this area. And so that’s kind of where, you know, I think that to the, to the exact point you were saying, I wonder what would happen if, if they didn’t do the Christian prayer, like who would be so offended? Well, the Christians were very deeply disturbed and could not hear a satanic prayer in Florida and repeatedly and or an atheist prayer. When Sarah Ray gave a humanist prayer, they were also protesting her,
Liz Cavell: Right? Nobody wanted to just be a part of the pluralistic community when like David Suhor shows up in his Dementor costume or whatever, but what really sucks so bad about to bring it back to the Kennedy case is that when Gorsuch is, is doing his mansplaining about how like people need to stop being so offended. I mean, he’s in this context and in this case, he’s talking to secondary school kids who are in the most coercive peer pressury, you know, awful space that is high school and they are in high school athletics, which is just universally acknowledged to be the most high pressure like power dynamic between coaches and students is universally known to be crazily in favor of the coach. I mean, this person controls whether or not kids are on the team, whether or not they have playing time, whether or not, they have access to scouting and scholarships and all of these things and you are literally part of a team. So the, the whole ethos is to do what your team is doing and be part of the team and not to be an individual, not to, you know, exempt yourself from some team activity, whether it involves prayer or anything else. And this is obvious, this is not, you know, somebody’s unique experience, but the court completely ignores that. And we’re talking about like adolescents and it just grosses me out how little this court cares about everybody, except for their favored Christian litigant. It drives me crazy. And it’s totally missing from this opinion. I mean, there is not a word spared for students that may or may not have been coerced or felt really icky. And like they had no choice, but to participate in prayers that weren’t a part of their faith tradition. But of course they’re part of a team and they’re gonna do it. And not only not a word is spared, but the court is just like beating the drum up and down that there are no people. Where are you all, you know, come out and tell us that you felt they don’t understand the irony of them saying out yourself person, if you feel so coerced, I don’t know why you’re not, you know, coming out as the only person so we can attack you. It’s just gross.
Alison Gill: The court also ignores a special position that the coach has as a person able to do this type of speech. They say, oh, it’s not in his work. It’s a time where it it’s a private speech because it’s not in his work experience, but he has access to the field at that exact moment. And nobody else does. Like they, nobody else can get on like another group to come do their religious speech. We couldn’t have like a political rally on the field. We couldn’t have like a ban marching only he has access to it. And so there’s no like pluralistic, forum or anything here where we could have multiple viewpoints. He is privileged and gets to take advantage of that privilege. And that’s exactly what the court wants in every aspect in this area. It’s like pretty emblematic of what the court wants. They want Christians and positions of power to take advantage of that position. That’s what they’re going for.
Liz Cavell: A hundred percent. This is like the dominion, like streak of the court. Like it really is where it’s just, and you hear them, you know, they’re talking about it in this like pseudo jurisprudential way when they’re analyzing what Alison’s alluding to, which is how the court’s government speech jurisprudence interacts with the religion concerns and the Establishment Clause concerns that and free exercise that were going on in this case. And what Alison is saying, which has been the understood law is when the pedestal you have you owe to its existence, your government job. That means, you know, you’re probably engaging in government speech. In other words, you’re employed as a coach. That is why you get to stand on the 50 yard line and command the attention of a stadium full of people and two teams of student athletes. It’s because you’re a public school coach. That means what you’re doing is in your capacity as a public school coach. Like that’s not controversial, but now the court finds, oh, actually it’s a little more nuance than that because–
Alison Gill: If it’s religious–
Liz Cavell: Right, totally. So, I mean, it’s just absurd acrobatics to just say, look, this guy has a private speech interest in the downtime moments during his coach capacity, he can kind of like turn it on and off. And oh, by the way, these prayers were private and personal anyway. So like all of that, the totality of those circumstances, no one could conclude that this is violates the Establishment Clause or is a public prayer.
Monica Miller: I was gonna say to the radicalization of the Supreme Court and like who’s on it. And like the not mentioning of the children being coerced or any kind of concern for them, like juxtapose that with like justice Kennedy’s decision in Lee versus Weisman, like where they even talk about or Santa Fe, sorry, the Santa Fe decision where they even talk about like, if there’s a conflict like between the Establishment Clause and the Free Exercise Clause, the Establishment Clause trumps, if there’s a conflict between Free Speech Clause and the Establishment Clause, the Establishment Clause trumps. In other words, in the school context, especially where, you know, the students might misperceive something. That’s not really endorsement by the school, it’s actually a private prayer. If there’s sort of a confusion, the balance leans in favor of the student and of separation because that’s how important separation of church and state is. Now, we’ve got double protection for the coach for the religious speaker. And we’re talking about justice Kennedy who is a, who is considered a conservative justice, who, who, who shared that view in Santa Fe.
Liz Cavell: And I mean, just to underline Monica’s point courts, number one, like the point of how fast we’ve fallen, right? We’re just talking about Kennedy not that long ago in the last, you know, 20 years totally focused on in these cases, totally focused on what is being perceived from the point of view of the students, right? Like what is the reasonable student observing in this situation and what are they feeling? And, and the whole reason why, like what Monica’s saying, you would let the Establishment Clause concerns really Trump in this context is because the public school is government, right? When we’re talking about Establishment Clause, what does it mean for the government to, you know, do something, respecting an establishment of religion? It’s like the public school is a governmental machine, right? Like they have tremendous power over the students in their care. And the students because of the unique context are the most impressionable people in society, right? They’re still like five years old to 18 years old. The coercive pressures already exist within like the social structure of school, peer pressure and the pressures that are innate in the teacher and coach student relationship and students are compelled by law to be there. So the governmental force is really, really strong and that’s why to Monica’s point, the Establishment Clause concerns are so heightened in this public school context. Like it doesn’t get any more Establishment Clause than religious pressure in public schools.
Rebecca Markert: I wanted to talk about the special context because we keep talking about how the court ignored all of what Liz just said. And that’s true for the majority, but Sotomayor in her dissent did talk at length about this. She did point out or remind the majority that there is a special context here. She says, you know, “‘neutrality toward religion is particularly important in the public school context given the role public schools play in our society. The public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny,’ meaning that “‘[i]n no activity of the State is it more vital to keep out divisive forces than in its schools.’" And I thought that was a really good reminder for her to point out because yes, all of that was lost in the majority opinion.
Liz Cavell: And she’s laying it out like this is what we, this court has done for decades and built this body of law. And here comes this six justice majority, again, just totally taking a sledge hammer to this constitutional principle that has been embodied in the Establishment Clause for like literally 70 years. And this court just doesn’t care. It’s following this super alarming trend that we’ve seen this term and this is very similar to what’s happened to Dobbs. And what happened in the gun case. It’s, it’s this like, well, all we follow is history and tradition and all we mean by history and tradition is whatever the hell we already think. And we’re gonna favor our preferred litigant and our preferred kind of result. And we don’t care what this court has spent decades building through a body of law.
Rebecca Markert: And she just very frankly, ends the dissent by saying, today’s decision is no victory for religious liberty.
Start of Interview with Rachel Laser (Time stamp: 31:09)
Liz Cavell: Which I love because this is to what Monica was saying earlier. Like this is not actually doing what the First Amendment was intended to do, right. There are two clauses in the First Amendment for a reason. And it’s to protect the freedom of conscience of the American people. And that is not what this court cares about or is doing in these cases. So we are going to start our conversation now with Rachel Laser, who is from Americans United for the Separation of Church and State. She is also a woman attorney working to protect the separation of church and state.
Rebecca Markert: Welcome to We Dissent, Rachel. We’re so glad that you are very first guest on our podcast when we were discussing this idea way at the beginning of the year and we were trying to figure out what this podcast was going to look like we definitely wanted to have other women attorneys come on because we really wanted to elevate those voices in this space. And when we were thinking of who should we invite to this podcast, yours was legitimately one of the first names we put on the list. And we’re so excited to converse with you today. Rachel Laser is the president and CEO of Americans United for the Separation of Church and State.
Rachel Laser: Well, I’m very honored to be with you all and really have been looking forward to this and couldn’t feel like I’m in better company.
Rebecca Markert: Why don’t you just tell us and our listeners a little bit about yourself. As I mentioned at the outset, we know that you are a lawyer, but why don’t you just walk us through your career path and let us know how you came to Americans United?
Rachel Laser: Wow, we don’t have enough time for all of that. We’ll try to shorten it. I am a lawyer by training and after a short stint in a law firm and doing a judicial clerkship for the Southern District of Maryland Court, I found my way into women’s advocacy. Legal and policy did a longer stint at the national women’s law center, which I loved and touched church state separation issues there for the first time, very directly, when I ran and started the pharmacy refusal project about pharmacists refusing to fill and dispense birth control prescriptions and wrote then Governor Blagojevich, who didn’t fare well much after, his emergency regulation, disallowing pharmacists from refusing women’s birth control prescriptions. And after that, I fell into being a Jewish professional for the first time, which was accidental. I bumped into Rabbi David Saperstein on jury duty and he recruited me to be his number two at the, the RAC, the Religious Action Center of Reform Judaism, uh, never fancied myself as a religious professional, but I sort of shockingly found how many of my values were very aligned with the reform Jewish movement, which is how I grew up, just hadn’t sort of registered. I think a lot of values can be set and they can be set that way. But I think in, in the Jewish community, a lot of our values are sort of passed down through family tradition and family values. So it was a good fit in that regard. And I did a lot of interfaith organizing there, fell into doing a sermon, even though I’m not a rabbi for GW Hillel, that was called uncovering my white privilege on Yom Kippur. That was back in 2015. And when we were learning about all the murders of innocent black people, and it puzzled me why I felt a little uncomfortable every time I learned about white privilege, it made me a little squirmy and I didn’t understand why, but ultimately, I wrote a sermon about it and did a deep dive reading, James Baldwin and Ta-Nehisi Coates and many others. And from that point I really felt moved to do that work full time and left the RAC to become an educator on white privilege and racism. And I did that for two and a half years. And, and then this recruiter called from Americans United and you know, the rest is history. That was four and a half years ago.
Monica Miller: That’s great. I had a couple follow up questions to that, just in terms of what your career path has been, why separation of church and state given your career path with repro rights and you know, all this other activism that you’ve done, why separation of church and state, why is it so important? Maybe this recruiter that you’re talking about was really persuasive, but I have to think that, you know, why not go back to repro rights, especially now, like why church and state.
Rachel Laser: You know, I think one of the reasons that I’m enjoying leading Americans United is because I consider myself the average American in this way. I don’t think I understood the deep connection of church state separation to so much of what I cared about until the recruiter called.
Oh, interesting. So he really was, or he, or she really was that persuasive then.
Rachel Laser: She wasn’t actually, because the first time she called, I said, I’m so honored, but no, thank you. I’m really enjoying this white privilege educating, and other things happened. My husband experienced like a sudden weird illness that ended up resolving perfectly, thank goodness. And I just sort of thought about it harder when the recruiter came back to me and I thought about why I was feeling this time, like saying yes. And I thought about its connection to everything that I had worked on before, you know, the connection to reproductive freedom and justice, the connection to LGBTQ equality, but also the connection to racial justice. And I think when I first came to Americans United, I talked a lot using language that frankly even made some of my peers at that time, a little uncomfortable at first, I had talked a lot about white Christian privilege because I think I was able to see, so clearly how Christian privilege was operating alongside of the white privilege that I had just educated on for two and a half years. And it felt really like it was bringing everything together. And that’s why when I was first interviewed, I said, things like, you know, church state separation for many Americans is like your mom, like you take, take your, take her for granted, you know, like, you know, she’s there like you want her there, but you take her for granted. You know, or it’s like a scratch and sniff where you have to like scratch a little bit to smell the nice smell.
Monica Miller: Yeah, wow. The mom analogy is really good. I really appreciate that one because I feel like people are now starting to see it.
I mean, because we’ve sank to the low point, but yes.
Monica Miller: Yeah. Well, you consider yourself religious and Judaism sounds really important to your background, separate from your activism. Why should other religious people maybe who don’t have the same drive to wanna fix the world and all, all these issues that you’ve worked on. Um, but just your, your regular religious people. Why should they want a strong wall of separation in the same way that you do?
Rachel Laser: Yeah. So one, I would just say, I consider myself to have a religion and to have raised my children in it. And I did marry a guy who grew up sort of Conservadox. I’m not a particularly ultra devout Jew. I mean, I’m a reformed Jew, but, um, but, but I think to your question, I think that when you are a minority of any type, you feel your minority status really strongly stronger sometimes even than, than someone who’s in the majority. So, you know, when you are a woman in a room full of men, you feel that even stronger, you know, your status as a woman and as a Jew, you know, as one of the 2% in America, you feel your identity really strongly. And so I think in that regard, you really value being able to have that identity and to feel hopefully safe in having that identity. Like you have equal opportunity with the government yet your children will be treated the same in the public schools that you send them to. And so I, I think that what not every religious denomination understands right now is that really all of our ability, all of our freedom to be part of that group is at stake. If church state separation is lost. And that’s why recently I met with an American Baptist regional leader in the Bremerton area of Washington. And we’re gonna talk about Kennedy v. Bremerton. And he talked a lot about his own Christian denominations tradition of being so devoutly for church state separation, because Baptist remember a time when they weren’t allowed to practice their religion freely in America. So none of us as people of faith, or of course, people who are non-religious are safe in America without church state separation.
Monica Miller: That’s a really good answer. One thing just, just to quickly tangent off of you mentioned or alluded to sex discrimination, and, you know, this is a podcast where we undergirding a lot of this is a feeling of sort of an inequality in the legal system. Women are sort of underrepresented and especially in leadership roles and especially in the church state separation field, um, have you, and, and maybe you don’t wanna share any of this, but if, if you have any specific instances of sexism or gender discrimination that you have witnessed in your career as a lawyer and a woman.
Rachel Laser: I mean, I’ve encountered sexual harassment in my early career at a law firm. I definitely have felt that even vendors coming into Americans United have sort of walked past me. And then when they found out that I’m the president and CEO done a little bit of a double take, especially when they’re trying to get our business, I worry about seeming, you know, bossy for being a boss and having authority. And I think that that is sort of something that I know I struggle with as a woman leader. And you can, you know, you can ask my colleagues, Liz, you can ask your husband, how I’m perceived, but I know, but even as a leader that I wrestle with that feeling as a woman leader. So yeah, I would say that we have a ways to go. And I also would say that church state separation is bound up with gender equality. And that’s never been more clear, certainly in the LGBTQ contexts, we’re seeing constant attacks in the name of quote religious freedom. I know that from, you know, the early days, for example, of the religious freedom restoration act in the early nineties, that it was misused to pay women less than men in schools because of quote, you know, the Bible and to hurt and wound women’s equality. So it’s another one of the draws for me of working on church state separation.
Rebecca Markert: I mean, I think a lot of what you’re talking about when you’re talking about being a woman leader really resonates, I mean, I’m not running an entire organization, but I do run a rather large legal department at the Freedom From Religion Foundation. And I feel like I’m always thinking that way too. Like, oh, am I gonna come office bossy? And when I’m writing emails, being very careful to, you know, take out the, I think, and just here is a directive, but how’s that directive gonna be perceived and I hate that. We think that way, I feel like it wastes a lot of time and I wish we could just get out of our own heads and just do the job. Because when I started at FFRF, these women did not exist in this field. It was really me and a whole lot of men, but the former legal director at Americans United Ayesha Khan was the only other woman in, at a lot of these meetings when we would meet to talk about complaints and things like that. Since then, I started at FFRF in 2008, we’ve grown so much and there are so many women involved now it’s really amazing. And a lot of these women are like the movers and shakers of the movement. I mean, we have all of these women leading these legal departments, all of our organizations were founded or are currently being led by women. And I really think this is one of the reasons we had this podcast was just to elevate that and really highlight and showcase the women who are really doing a lot of the work to give us true religious freedom in this country.
Rachel Laser: I love that. I’ll just share one thing that I’m working on and a lesson that I’ve learned, which is, I often find that my staff prefer it when I am even more clear about where I’m making a decision or I have authority. Like I think sometimes where I mess up is by not being willing to state that this is my decision, or I will make the final decision, or I am coming to you to get your opinion and your weigh in, because I really value it, but I will make the final decision. And when I skip over saying things like that, I get myself in trouble. And when I do say things like that, even though I worry so much about how they’re gonna come across, they’re actually people react really well to them. So I think we should all get a little bit more brazen in being, in owning our authority more of the time.
Liz Cavell: I just wanna interject because this conversation is making me remember. I am one of the subordinates subject to Rebecca Markert’s, boss ass, leadership in the legal department at FFRF. But we have a lot of interns that come through our legal department and work for us over the summers and throughout the school year. And one year I got a call from someone who was checking a former intern’s references for a job. Uh, and it was a woman, who was calling, attorney to ask me about this law student intern. And one of the things I said to her and I was like, you know, this is kind of like off the record. I don’t, don’t ask me what to give you a specific example about this but one thing I’ll say about him that I really appreciated was that I was supervising him and he was one of those interns employees who is really good at, who just is really good at working under female leadership. And she was like, I know exactly what you mean. I so appreciate that, that feedback because it it’s one of those things that lives in like the unconscious bias space of the universe. But it’s just, if you’re a woman who has to supervise other people in the workplace, you sort of, you know what that means.
Rachel Laser: Yeah. It’s like Ta-Nehisi Coates talks about in between the world and me sort of needing to be twice as good to prove you’re worth when you’re a black American. And I know that a lot of women feel like that. And certainly in the realm as bosses, we also feel, you know, like we have to be twice as good maybe bring in other validators. Whereas I don’t think that a lot of male, as many male bosses have traditionally felt that we, of course I hate to gender stereotype because there’s always folks that don’t feel like that. So yeah. And I, and when I came to Americans United, actually our membership was two to one male to female and we were radically changing that now. So, you know, we’re very deliberately reaching out to women lists in our direct mail and using my own profile in order to do that and my own voice, you know, hopefully to reach more women. And it was funny because at first I thought, well, we can reach more women by talking more about the intersection between reproductive freedom and religious freedom, but, and that certainly reaches our women members. But I find just anecdotally that our women members are, you know, really moved by the message about how democracy is sort of at risk. If church/state separation is under attack.
Monica Miller: You know, I think it’s like that idea of representation matters and, and having other women see you in a position of, of power and authority in, in this kind of role helps them think, oh, I can do that. And then when they come into that role, you know, in 10 years or whatever 20 years, they won’t have this, maybe the same levels of anxiety and insecurity that we all have felt that, imposter syndrome, I don’t know if it’ll ever go away for me. It’s because the amount of people that have, I’ve had to walk into the witness line so many times in court when I’m like, no, I am the lawyer that is arguing this case. And it’s like, they’ve confiscated my water bottles thinking I’m a juror. And that weighs on you. It’s like you can, you kind of get the vindication of like, you know, marching back with the court clerk, like to get your stuff, but like, you know, it doesn’t help your confidence when you’re trying to invoke that authority. And so I really empathize with what you, what you shared. And I really am thinking our audience would benefit from hearing that too, because you know, we do all experience it. And I hadn’t heard from these other women, you know, as strongly about how they’ve experienced that too. And it’s, it helps knowing that, you know, we, it, we, when we invoke it, it actually has positive effects and you guys are getting good feedback. And so that in turn makes me feel more confident to make those kinds of judgment calls when I feel like, Ooh, I’m being too, too bossy, too mean. So thank you for sharing that.
Rachel Laser: And just, sorry, one more thing. I can’t resist and tell you all, since we’re talking in this space, which does feel really good by the way is when the Dobbs decision came down. And I just, you know, I think like so many of us just found it so upsetting, you know, and to me it felt like just the biggest insult that I’ve ever received from the country as a woman. And, you know, just like a real, like official declaration that I was sort of beneath men and I couldn’t have control over my own body and I was extremely upset by it. And you know, it took like I headed to the Supreme Court, you know, I headed to Supreme Court when the leak came on, I headed back to the Supreme Court when the decision came down and, you know, by the time the decision came down, you would think that I would’ve gotten used to it instead find those worse, there was–
Monica Miller: It was worse-
Rachel Laser: It was worse. And then I, I had this moment of leadership of, you know, needing to talk to the staff about it because I, and I didn’t the first week because I couldn’t. But the second week of I have said to myself, okay, now I really should say something, you know, everyone’s very distraught and this is a moment for the leader of an organization to speak up. And I could just tell that I wasn’t ready to, and of course I did and I completely broke down crying, you know? And just like, Ugh, like I knew that was gonna happen, you know? And I said to the staff, like I knew I wasn’t quite ready to talk about this. I’m just incredibly upset about the decision and I could cry again just thinking about it.
Monica Miller: I understand. But that’s real leadership.
Rachel Laser: Well, I was mortified, you know, like, right. That’s the thing. And so it’s also like being willing to accept. Yeah, that I was told by a lot of people after this. That was good leadership. But of course, the way I felt in the moment was mortified because it didn’t match sort of the traditional male model of leadership. So it’s, it’s a journey, you know?
Monica Miller: Oh my gosh. I’m just, thank you for sharing that too. Because I, I understand that feeling of like when you can’t catch your breath and you’re just like, I know I need to like show face, read a decision. It might not be this one. It might be one of our own cases when we lose and we’re expected to like turn around and do a press release. And it’s like, you know, and that’s not been the case like late, but that has been the model. And it’s like, I am like emotional, like I’ve lost something that I’ve put time, sweat in. You know, we’re not making extra money when we’re up at 2:00 AM, you know, writing these things and doing these things and making the, you know, sacrificing weekends, sacrificing time with kids. Like so to the slap in the face from the government or of the country, it’s like, this is the country we’ve been fighting for and this is the respect that we receive. And so, and then to have to, to be the leader and then go into the space and try to, to be brave and then feel inadequate because you’re emotional about it. Like you’re supposed to be emotional. And I think that is the leadership that not just women need to see, but men need to see men need to be able to express their emotions rather than bottle ’em up and then be violent later. And you know, maybe that’s stereotyping too much, but it, I do feel like that kind of leadership lends itself to a more open and inclusive environment.
Rachel Laser: Yeah, no I, I do too. And I think it’s sort of the flip side of privilege, which is all the ways that you’re wounded by, you know, the constrictions that the stereotypes place on you. You know, a lot of white people think we have, we have all the privilege and we do except for we lose when it comes to humanity and we lose when it comes to like a false sense of meritocracy right. Or a false understanding of the facts and same with, you know, men. I mean I do think that’s, that’s ultimately true, but yet we are still operating in a real world where these models of, you know, leadership are still defined in a more male stoic,
Monica Miller: Right? Yeah. Stoicism. Be cool. You know, don’t let something affect you.
Rachel Laser: Yeah, exactly.
Liz Cavell: Well, we could talk about this literally for hours, right. But I think we should address the big, scary, ugly troll in the room, which is the Kennedy decision. So everyone listening to this knows that we got this decision, the four of us have been sort of processing it and debriefing the decision. And now we have Rachel here in the hot seat. So I’m wondering Rachel, your organization, as we mentioned earlier, represented the school district at the Supreme Court and we’re talking all about the decision and what we kind of see on the page, but we’re hoping for any like inside baseball, you might have about the experience of AU preparing to represent this case at the Supreme Court, preparing for oral arguments, figuring out how to message this case. When the other side is just totally carpet bombing the country with lies and just a total alternative version of what was going on and ultimately the court of course is in on that too.
Rachel Laser: Absolutely. So I think the answer is coordination, money, and faith voices. So with, um, I’ll start with coordination, we all have such limited resources. If you actually think of how many staff people we have at our organizations and right, we are literally all up against a billion dollar shadow network. On the other side, we actually added up the annual revenue of each of the organizations that had submitted Amicus briefs on the side of Coach Kennedy in this case. And the total was a billion dollars. So that’s really rough. And, and so, you know, when you think about how to overcome, you know, when we don’t nearly match the revenue stream, I think working together is the name of the game. And so when I say coordination, I mean coordination internally, meaning the policy team and the outreach team and the communications team all work very in tandem with the legal team. But I also mean coordination with all of our outside friend groups, making sure that we’re sharing resources, sharing messaging tools and guidance, and really defining the narrative in a coordinated way on our side. I mean, honestly after the Supreme Court term, when I was thinking to myself about how we would possibly recover, it became clear to me that the only way to recover was by working together. And it’s sort of one of the most cliche things that a person could say. And at the same time, I really believe that it’s the path forward. All of our rights are intertwined. You know, injustice anywhere is a threat to justice everywhere. And I think, you know, the more, those of us who are fighting for the rights of marginalized people and the people embrace that reality and figure out ways to work together in productive instead of destructive ways, the better, you know, Mary Bonauto from the marriage equality fight, who really was the architect of the marriage equality strategy from GLAD recently spoke somewhere. And, you know, she talks about how after 2004 in the election, when there was such a back siding, because of all the, the bans on marriage equality in the states, a group of leaders in the marriage equality movement got together and said, we are going to recognize that in different parts of America, there are different needs. And therefore, you know, those of us who are pursuing civil unions, those of us who are pursuing marriage equality, those of us who are trying to, you know, pass hate crimes or employment protections and other, we aren’t gonna stand in the way of each other, right. We’re gonna all sort of support each other and recognize that we’re part of the same movement and I just think that’s really important. So 0.1 was coordination, sorry, that took a really long time point two is money. That’s another way that that Americans United reacted. We actually took some of our resources and we hired a PR firm to work with us because we wanted to play in the really, really big leagues. And that’s what you realize that, you know, our opposition, our spending even so much more money than we are on working with these PR firms, we were really lucky because it just so happened that Coach Kennedy’s PR efforts had planned a big shebang at the football field in Bremerton the week that I decided to go. And so, you know, we showed up, and we were able to organize, I organized local clergy there, who, by the way, all of the local clergy weighed in on the side of the Bremerton school district and Bremerton students, not the coach. Isn’t that remarkable? I think that’s really noteworthy. Yeah. It’s not remarkable actually, when you know our issue, but I think for the American people, it’s noteworthy.
Um, but the, you know, the other side had like glossy press kits with all the, I mean it just, every single step of the way cost money, we ended up doing a satellite tour as part of our efforts and the satellite tour costs a lot of money, but it really got us out there it’s like that, you know, all these different radio and TV stations sort of come to you via really like your desk. And you just get out there in a new way. And I truly believe that we were really helping to define the narrative around this case because of that, but it was, it took resources in terms of money. So money is number two, faith voices is number three because I, you know, I was, I was even on the phone this morning with someone who’s really a prominent scholar in the church state separation community. And she was talking about this case and she was gonna be sort of using a lot of religious plaintiffs and she said, because they have the higher ground. And I think I know what she meant, which is in America still, you know, you have that moral platform when you’re coming from the faith community. But, you know, I of course sort of made clear that I thought there should be some non theist people who are part of the case too. But I think there’s a reality, again, that in America, because, because of church state separation, arguably we are a more religious country than many. And therefore when you’re from the faith community, you value hearing kind of the voice of any faith leader a lot. And we have to own that reality. And the truth is there’ve always been a tremendous number of faith leaders who are on the side of true religious freedom.
Americans United was founded by faith leaders 75 years ago, predominantly Methodist pastors in Chicago, but also the president of the Southern Baptists and Seventh Day Adventists and others. So I think, you know, for our community to work with faith leaders is really important and it makes me really proud that church state separation does and should bring together atheists and the non-religious with people of faith. I think that’s amazing. I think we’re living in incredibly divided times and it’s really wonderful to be able to do that work of finding places that are right before us, where we all really profit from the same outcome. And I think that is the reality. I mean, you know, where, where do you draw the line? You know, a lot of people talk about religious freedom being intention with these other rights, you know, right. That’s like a favorite of the faith community. And so, you know, what do you do and where do you draw the line? And I think we have a great place to draw the line where we’ve seen in our polling that most Americans profoundly agree, which is that the law shouldn’t allow anybody to use their religious beliefs to harm others. That should just be a no-go and upwards of 80% of Americans agree with that message. So maybe, you know, we need to do a better job of demonstrating the harm because when you are part of these majority groups, you don’t always see it.
Liz Cavell: Yeah. Right. What you’re and like what you’re keying in on with that faith voices thing is, so I think vital right now for a lot of progressives, across the board that are trying to communicate these threats to broader groups of people than are already part of, of our coalitions. It’s like, it’s the trusted messenger, right. And that’s who you need to communicate your message to these other groups of people. And going back to your metaphor where it’s like church, state separation is like your mom. It’s like, well, you’re not gonna believe me about how great my mom is, she’s my mom. It’s, it’s like, you need your trusted communicator to tell you how great my mom is and then you’re like, oh, your mom sounds great. It’s this topic that is not that accessible, or doesn’t raise that threat unless you really are hearing about it from a, a trusted source and a communicator or messenger that you relate to and that’s not always our organizations, you know, in and of ourselves.
Rachel Laser: Exactly.
Monica Miller: Yeah. That’s a good point. Both about the, who is leading the discussion, but also how we can sort of join together in this bigger fight, because you’ve brought up the resources of our opponents. And I love that you in your group put together some facts and figures, because that’s something I’ve been, you know, saying for years I can name all of us. You know, the lawyers that are working on these issues, 20 fingers for our associates and other folks in the legal field, but it’s small and we have small funding and they’re using already ad agencies and all that. So I think that we absolutely need to band together and there’s simply not enough atheists to band together. We have to, we have to find common ground with our religious allies and we have to make it clear to them how church state separation benefits religion. And it’s not a trick. It’s the truth. It benefits religion more in a way because there’s more to lose. I’m my, my, I’m so stern in my atheism and it’s gonna take a lot to change that I don’t feel like I’m gonna be coerced if you’re religious and you have a child and you’re raising your child to be devout Jew or devout Catholic, and you put them into the public school system, it’s now it could be a different brand of Christianity that your kids indoctrinated by. And, you know, as a parent and as a, as a person, I think it also matters who’s giving the message.
Alison Gill: I largely agree with our conversation about including religion, but I just, I wanna make sure we don’t get lost how this affects atheist and nonreligious people too. And I feel like sometimes the stories of how atheist and religious people are sort of are affected or sort of glossed over with the goal to highlight how it affects religious people. And I don’t know, I know I’m not saying I used done that at all. I think they’ve been fantastic and work really great with our community, but I’m just, I wanna just highlight that as a concern I have, you know, that we wanna make sure that these issues definitely do affect non religious people and that needs to be in the media as well.
Rachel Laser: Yeah. And Alison, how would you say, I mean, just sort of talking to someone, not from the atheist or non-religious community, how would you explain that hurt, that harm?
Alison Gill: Sure. Well, I think I would give examples. I mean, we, all of our organizations get complaints all the time from people that are non-religious and that are forced to sort of, you know, undergo proselytization or coercion in prayer often in the context of substance use or prison or, you know, schools and other con-. And so these situations happen constantly. And you know, we’ll talk about this more in a moment, but it’s like our ability to fight these issues is decreasing rapidly, but this still needs to be highlighted as an issue.
Rachel Laser: Yeah. And because I think that’s such an important point and I think that one of the things that we need to spell out more collectively is what the harm is. I don’t think that, you know, when we just stop at talking about the principal all the time and don’t explain what ensues, when the principal’s undermined, I don’t think we’re gonna get far enough. And I think if we’re gonna have a national recommitment to church state separation, which is definitely what we need, it starts with education and education is spelling out what is so basic to us, but that most people spend zero time thinking about, like what you just pointed out, you know, and naming some of our clients, the Janny client, and one of the Americans United cases who, you know, was forced to report to, in order to have parole, to, you know, a place as an atheist where he had to engage in Christian prayers and rituals. And you know, I think it’s easy to forget when it’s not happening to you, just how awful it feels when you’re forced to participate in a belief system that isn’t your own. I mean, let’s go back to, and you know, I know the founding fathers, aren’t always so popular these days, but let’s go back to what the underpinnings of this whole concept is about, which is that freedom of conscience is just as vital as any freedom that anyone could ever think about. People are willing to die for it all the time around the world. And so maybe, you know, in the context of not wanting to join your coach for his Christian prayers, someone’s not gonna, you know, literally go to war, but at the same time it makes you feel awful. And like an outsider as Justice O’Connor, you know, as pointed out about church state separation before. And that is I think something that everyone should be able to relate to, if we can spell it out.
Alison Gill: I think this is a really good segue. Actually, you know, this case, this decision is going to have really momentous and far reaching consequences. It was really a significant decision, unfortunately, and I’m curious, you know, just moving forward, what do you see as the biggest challenges this presents to our work fighting for a church state separation.
Rachel Laser: Again, where to begin , but I guess, I mean, as I’ll just start with something that is one of the most upsetting aspects of the Kennedy v. Bremerton decision, which is the court gas lighting us when it comes to the facts and claiming that what is definitely coercive behavior from a state official, a coach is personal and private and you know, nothing to do with pressuring students. I think it sounds like your listeners are very up on the facts of the case, but when a coach holds public prayers at the 50 yard line directly following the handshake at the time when the team is expected to report for the huddle and is engaging in those prayers, there’s no question that it puts pressure on students who wanna have play time who wanna have college recommendations who wanna fit in with their peers to join. You know, I think that that’s obvious and that’s why it was so wacko that we were dealing with false facts at the Supreme Court level, you know, that there were two stories. And I think what really marked that reality was Justice Sotomayor need to put two pictures into her dissent. Like when has that happened? I mean, and I have to say, I have to give my own mother credit. So my mom, Joan, she is a super cool woman actually. And I need some validator to tell you Liz, but she was a, she’s now retired, but she was a civil rights lawyer worked for the Department of Justice, doing all civil rights. And so, you know, she’s a staunch church state separationist. And when she heard about this case, the Kennedy v. Bremerton case, she, I don’t even know if I told the legal team this, but she was the one when I was talking about, she was like, you have to get them to walk into that courtroom with like a huge blow up picture. And anyway, they dinged my suggestion and were like, no, like that doesn’t really happen. But I thought my mom was vindicated when Justice Sotomayor put that in. But, so I think that part of the case is really scary. Alison, just to go back to your question, because I think that gives like a nod and a license for coaches and teachers all across the country to pretend that when they are engaging in religious activity, that would put pressure on students that it’s just private, you know? And so it’s like a complete work around not to mention discrediting really so much about people’s belief in the Supreme Court, which is its own whole set of problems, which we could talk about. So I think, you know, that part of the case is fundamentally concerning. So is the fact that the court showed zero concern for the students, right? Like there was zero empathy for what it would be like to be a Jewish student or a non-religious student or a Muslim student or religious minority, non Abrahamic religion, you know, to have a coach like that. Like what that must feel like for those students. It’s like, and again, I mean, I know Amy Coney Barrett was part of the majority, but, and again, I always feel weird a little bit about gender stereotyping, you know, being married to a man who is like at a phenomenal parent and incredibly emotionally intelligent and empathic, but it did, it felt like the empathy was just like not there and empathy, right? Isn’t a bad word. It’s not a soft word. It’s part of actually seeing the full reality instead of just the partial reality. And here, when the test should be, I dunno how legal we’re gonna get, but should be about, you know, coercion and pressure. That’s absolutely a vital missing piece in terms of what was in their decision.
Alison Gill: Going back to the first part, you were just talking about this sort of cherry picking of facts and well making up whole cloth of facts and ignoring others really does show the problem with the new test that the court has elaborated on the historical practices and understandings test as vague as it is, because it shows how easily they can just pick facts out of nowhere and make them up. I mean, this case, Dobbs, several of the others around second amendment, it’s just one after another and it’s just made up history so I just think this is an very emblematic case for this problem.
Monica Miller: Yeah. It happened in Bladensburg too. Justice Alito wrote all sorts of facts in our cross case that weren’t there. I was so incensed by his distortion of my facts that like no one else in the outside world really could know or care about because they don’t know my record like I do, but it was, but some people did. And I think someone even wrote a law review article about how Alito was doing that before this round of him distorting facts. So I empathize so much with that being the thing that really bothers you. This is a recurring theme on our podcast, how we feel like it’s not a game anymore because we’re not all playing by the same rules. Like the other lawyers get to put in all these appendices on appeal, the judges are so, so pre determined, like we already know the outcome. Like there’s no, it makes the fight like, like what’s the point feeling sometimes. And so when you, your facts get so just concocted and changed, it’s like, why did I even bother writing a statement of facts?
Rachel Laser: Well, yeah, I think I, I just wanna pause here on the facts though, right? Because I think that this feeling of being gas lit, I saw all of your heads not, because I’m watching you in a separate venue here when I said that. And I think as women it’s such a familiar feeling and I think like we’re not just talking about sort of one set of facts versus another, we’re actually talking about a reading of the facts that maintains power structures, where they are versus a reading of the facts that is truer to reality and that would jostle existing power structures. And I think that’s why this sort of distortion of facts is so familiar.
Monica Miller: It’s the same hubris that says the cross represents Jews. That was what they ultimately were holding. And it’s like, but you, but no, it doesn’t represent like you can’t write that into fact that doesn’t become fact because you’re using your special Alito pen.
Rachel Laser: Well, and, and I think, you know, I was actually, when you brought up your case Bladensburg I was gonna bring it up too because it’s in part the cherry picking of history, which is an abomination, including citing, is it 16th century English, misogynistic judges. Give me a break.
Liz Cavell: See Dobbs.
Monica Miller: We were chattel property back then we literally had no rights in ancient England.
Rachel Laser: But other that’s the other part of it. It, which is the blatant effort to maintain current power structures by defaulting to a history and tradition test is something that it just shocks me, you know, all Americans aren’t up in arms about. And I guess it’s like exposing the true colors of those who are either too privileged to understand and see the way it maintains those power structures or just basically power hungry, you know, which is probably more what it is and desperate to hold onto those power structures when the demographics are changing so wildly in our country. But it’s a test that is so about destroying America’s progress towards fulfilling its promises of freedom inequality that it’s enraging. Yeah. And as a Jew, Monica, I was gonna say as a Jew, I mean, my, I was talking to my great uncle, just turned 101 and he is a World War II veteran and a cross would not honor his service, you know, and there’s just no I’m because I’m Jewish and there’s just no. And so is he. And there’s no Jew who would passively right. Ever pass that cross and think, oh yeah, but that really stands for us too. Or only in the way that, you know, you’ve learned as a religious minority when someone says Merry Christmas to you. Work around like, okay, maybe what they’re trying to say is just happy holidays and they don’t really have the words or understanding to know that I’m celebrating something different. So you have to go through literally gymnastics if you’re being honest. But if you’re truly being honest and getting in touch with the most painful aspect of that type of behavior, it’s truly not seeing you, you know, it’s which is, I think what we’re all facing with a court like this, we are facing all of us in ways that we are minorities just not being seen.
Monica Miller: Absolutely.
Liz Cavell: Well, we’re getting at what the, the inescapable kind of broader reality that this decision, the Kennedy decision, and all the decisions this term and most notably Dobbs, like the inescapable fact that we’re all facing, that is a threat to us and everything that people like us cares about is this court. Because I mean the parallels with Dobbs are so striking and people are not paying as much attention to the Kennedy case as the Dobbs case for obvious reasons. But when you think about what we’ve been talking about in this conversation, it’s so parallel, it’s, it’s this, first of all, it’s just the convenience of the facts to fit the justices, you know, preferred power structures and maintaining the status, their status quo. And then there’s the absolute absence of empathy for the people being most affected by the decision, which in your case, Rachel is students and parents and in the Dobbs cases, women, and there’s just this absolute fetishization of one party or factor in the case and Dobbs it’s fetuses and in Bremerton, it’s this persecuted evangelist fetish. And it’s the, the whole case. It’s the center of the universe. Like there is not a word spared to express any type of empathy or, Rachel, you just said, it’s the not being seen. And it’s just, it’s hard to process these cases on their own terms and then just talk about it in a way that’s not this horrible global crisis of the court and the way it’s approaching cases and just ignoring whole groups of people.
Monica Miller: Yeah. It reminds me of the 11th Circuit oral argument that I alluded to in one of our previous episodes, the decision came down yesterday and it got remanded to the district court to apply the history and traditions test. This is the Ocala police department one. All the scenarios were bad, but at least, you know, if I won, then it would be a fast track to the Supreme Court because that’s where they’d take it. I mean the 11th Circuit couldn’t even, they could’ve, if they thought there was a legal way to uphold this prayer vigil with the Kennedy case, maybe they would’ve done that.
Liz Cavell: Rachel was it in this Kennedy opinion where there’s all these words spilled about how the district’s understanding of the Establishment Clause is the problem, you know. They thought they had these obligations and it’s, and we don’t know where they got that idea, you know, not like decades of jurisprudence and the Constitution. So, and then it’s like, and he’s talking about the reasonable observer and the problems with the endorsement test. And he’s saying, imagine, and this reasonable observer of course is, you know, just an idiot and this is a person who’s uninformed about history and really sensitive and crotchety. It’s like this attack on we Americans who would, who would take offense at a government that promotes religion because of it’s us.
Rachel Laser: It’s more it’s telling, right.
Liz Cavell: You’re crazy.
Rachel Laser: Right. It’s telling us that we’re crazy, right? It’s like what, what justices I think Kagan and Sotomayor were getting at in the Shurtleff argument about the Christian flag flying at the Boston City Hall flag full when they were talking about, you know, someone walking by. I can tell you as a Jewish person, that if I walked by a city hall and saw a big fat Christian Cross up on it, I would not feel very welcome in that town or city, you know? And so right. But somehow it’s like this court is just ignoring the reasonable observer or, you know, only dealing with a power. Again, I don’t even wanna call it unreasonable. I wanna tell it, call it a power hungry observer. You’re right. Who’s bent on keeping sort of white Christian male straight cisgender power as the status quo in America.
Rebecca Markert: Obviously June was a very hard month for all civil rights attorneys that last week in June was really a series of gut punches. And so I’d be really interested to hear as a leader of an advocacy organization, Rachel, how do you motivate your staff and instill hope after the June that we just experienced?
Rachel Laser: Well, I think a couple things, first of all, I think the first step is allowing time to grieve and not needing to move past that. So I think, you know, the first stop is allowing that time and allowing folks to feel upset because a lot of us have spent our entire careers working on things that just got taken away. And so in addition to being very concerned for ourselves and our rights and our neighbors and our families, we also feel a little bit like a failure, you know, and I think that’s a really profound feeling too. So I think the first stop is allowing time to grieve and take that in. And then I think we need a plan. And I think the plan is really motivating because I think the plan is building power and winning hearts and minds. And I think when you are so sure that you’re on the right side of history and the right side of the principles of this country, and then I think it’s possible to keep hope alive, you know, and to recognize that the work that we have to do is to persevere, you know, and that that’s how the other side won. And so we also need to persevere and we need to play the short game and the long game. And I think spelling out how we’re gonna get there. And more than anything, just remembering the importance of working together and of being in community. Like, honestly, we’re talking about horrible Supreme Court decisions right now, but don’t, you all also kind of feel a little invigorated I do by being with each other, you know, throughout this podcast. And so this is a microcosm, you know, of the work that we have to do. And I find that when I speak to large audiences, which I do often when I remind everyone that we’re on the right side of history and that we simply need to build our power and win hearts and minds and educate others about, you know, reeducate recommit that we’re going to get there. And the truth is no one really gives up, you know, no one really gives up in part because we all ultimately believe on a certain level. And I do profoundly in our country. And in part, because we know that if we do give up that is entirely letting the other side win. So why would we possibly do that? When we’re on the right side of history anyway. So I think allowing time, you know, for mourning is important and then, then it’s time to activate, right, and to join hands and to reach outside of our smaller circles and to enlist our fellow Americans who value. We were talking about people of faith earlier, but just people who value democracy and people who value the American experiment need to save church, state separation in this country.
Rebecca Markert: This was an amazing conversation. So thank you so much for your time. We really appreciate it.
Rachel Laser: I had so much fun. Thanks for having me.
Rebecca Markert: Thank you.
Rachel Laser: Thank you so much. Great to be with you all. Bye.
Liz Cavell: That’s it for today’s episode. I’m Liz Cavell.
Monica Miller: I’m Monica Miller.
Alison Gill: I’m Alison Gill.
Rebecca Markert: I’m Rebecca Markert. Please follow us on Twitter and on Facebook. Find out more about our podcasts online we-dissent.org. Thanks for listening. We Dissent is a joint production of Freedom From Religion Foundation, American Atheists, and the American Humanist Association. It is hosted by attorneys, Liz Cavell, Alison Gill, Monica Miller, and me, Rebecca Markert. Special thanks to FFRF law student intern, Jonathan Hellmandollar who assisted with producing this episode. Other production support comes from James Phetteplace and Greta Martens. Audio engineering provided by Audio for the Arts based in Madison, Wisconsin.
Thanks for listening.
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