Separating Church and State

us just the basics to start with. Sure, there's two clauses in the First Amendment dealing with religion. One says that Congress can make no law of bridging the free exercise of religion. In screen Qui says that applies to state and local governments as well. It's imman sub tectibility of people to practice their religion. The other clause says that Congress shall make no law respecting the establishment of religion.

It's usually called the established and clause. In the seven the Supreme Court said state and local governments also must comply with this provision. A person might hear that and say, okay, there's a line between church and state. But what about the fact that we pledge allegiance to one nation under God. Our motto, our us motto is in God we trust and it's on our money. Also we hear God save this Honorable Court before Supreme Court sessions. So how do

those play into the two religion clauses. There's a variety of different views on the example, as you mentioned, is there's a variety of different views of God to everything concerning these classes. One of you would say that this shows that we don't separate church and state in this country, that we accommodate religion into government and under God and the pledge of allegiance or in God we trust to God save this Honorable Court all reflect the larger point.

There's no such thing as a wall separating church and state. That's what conservatives would say. There's then a position that says that these are really what Justice O'Connor called ceremonial deism. They're relatively minor, they're part of our culture. They don't tell us anything larger than that. And then there's the liberal position that says, you know, under God really shouldn't be in the pledge of allegiance. We really shouldn't have in God, we trust on our money or God save

this honorable Court. We should have a government that's secular, and these are inconsistent with that, even though they're more symbolic than anything else. When did the Supreme Court begin to blur the line between church and state. We've seen that a lot more recently with the Roberts Court, But

when did that begin to happen? In nine in ever sin versus Board of Education, the Supreme Court said that the establishment class limits with state and local governments can do in all injustices in that case set that the establishment clause should be understood. In the words of Thomas Jefferson, there should be a wall that separates church and state. And that's what the Supreme Court followed for a few decades.

It really began to change in the Burger Court, and the Burger Court was in nineteen sixty nine to ninety six, and essentially in the nineteen eighties there were some decisions of the Burger Court there were much more permissive of religious presence and government and government support for religion. Some of the cases that stand out involving monuments religious monuments on public lands, and you were involved in one of

the cases with the Ten Commandments. Tell us about that case should The case was then ordin versus Pry was decided by the Supreme Court in two thousand five. It involves a six ft high, three ft wide Ten Commandments monument that is directly the corner the Texas State Camp on the Texas Supreme Court. My client, Thomas the and Ordon brought a challenge to that and argued that there shouldn't be a religious symbol at the seat of Texas State government. I lost five to four in the Supreme Court.

Four justices took the approach there's nothing wrong with religious symbols on government property. They don't coerce anyone to be part of religion. For justices said, religious symbols just don't belong on government property like this period. And then there was Justice Briar who was the fifth vote, and he joined the Conservatives, but without agreeing to the reasoning, and said this isn't a symbolic endorsement of religion. He said, this has been there since nine. No one complained of

the Thomas and Orton. He was paid for by Cecily the Millen promoting his movie The Ten Commandments, not by the State of Texas briars. There's lots of other monuments in the Texas State Capital grounds, so this doesn't inference the Constitution. To this day, there are still these cases involving religious monuments on government land that come before the Supreme Court. Is there a way of knowing how the Supreme Court is going to rule in these cases? There

isn't a way of knowing. Until recently, the question for the swing justices was whether a particular display should be seen as a symbolic endorsement of religion, and people would argue about its placement and its history, and if it was seen as an endorsement of religion, would be love. I'll give you an example. There were a couple of cases the Supreme Court. One involved a Nativity scene that was put in a large stairway display case in a courthouse.

The other involved a manora that's put in front of a city building along with a Christmas tree and a proclamation about tolerance in the holiday season. The Supreme Court said that the nativity scene was unconstitutional because all by itself, all by a saw if it was seen as a symbolic endorsement religion. But the Court said the manua was constitutional because it was with other symbols a Christmas tree, a proclamation of parliament. But there's no majority opinion in

either of those cases. The court was very fragmented, but that's what came out of it. And so until recently, I would have said the litigation is going to be about should the symbol be seen is an endorsement of particular religion. Now I think, though there's five just on the court will allow any religious symbols on government property. I think the five conservative justices Roberts, Thomas, Leo, Gort Kavanaugh, believe that the government violates the Establishment clause only the

coercive religious presentation. Religious symbols on government property aren't coercion. There are lots of different areas where it seems as if the Court is blurring the line or expanding religious liberties. And you know, a case that stands out in this to me is the hobby lobby case. And so tell us about the lobby and what that stands for and

what it's led to. It's a decision in two thousand and fourteen, and I should be clear it was not a decision about the religion clauses of the Constitution that we've been discussing. Instead, it was brought under a federal statute, the Religious Freedom Restoration Act. The Religious Freedom Restoration Acause, the federal law that says that if the federal government significantly burdens religion, its action is allowed only that the

necessary to achieve a compelling government purpose. The Patient Protection Affordable Care Act says that employer provided insurance should include preventative healthcare coverage. The Obama administration said this means that employer provided insurance should include contraceptive coverage for women. There was an exception for religious institutions that are post conception.

So Hobby Lobby major corporation stories in twenty three states would have been required in its health insurance policies to include contraceptive coverage for women, but it objected is a family owned business, and it said it violates our religious beliefs. They have to provide contraceptive comfort. And the Supreme Court five to four agreed with Hobby Lobby and said that at least for family owned businesses, if they have religious objections the contraception, they don't have to provide that to

their women employees. Did the Court expand on that this term or was it a different issue when the Court upheld the Trump administration rules, which gave more kinds of employers this broad right to refuse to offer birth control in their health plans. The case with Little Sisters Suppoor versus Pennsylvania, as you rightly said, the Trump administration said, any employer is an objection to contraception, whether based on religion or philosophy, can refuse to provide such coverage for

women employees. In the issue before the Preme Court with a narrow one, is this regulation consistent with the Affordable Care Act? And the Supreme Court seven to two said it was consistent with the Affordable Care Act, So it left open the question of did violate the Administrative Procedures Act? But basically the Court said the Trump administration could do it. So you have this idea of the conservative justices versus

the liberal justices on religion. But two Justices Elena Kagan and Stephen Bryer side with the conservatives a lot of the time. Why is it that they are, you know, liberal in other respects, But with this they often sawed with the Conservatives. Sometimes they do and sometimes they don't. So for example, a few years ago, there was a case Town of Greece versus Galloway that involved the town and upstate New York that for about ten years began its town board meeting every month with a very explicit

Christian prayer filled by a Christian clergy. Member of court five to four said it didn't violate the stablished clause, but Justice Kagan wrote a scathing descent, joined by Ginsburg Briar in Soda Mayor. There was the case this term Espinosa versus Montana Department of Revenues involved the Montana law that allowed parents to get a tax credit their money

to a private school tuition organization. The Montana Supreme Court said it violated the Montana Constitution because the Montana Constitution doesn't allow direct or indirect aid to religion. The Supreme Court five to four reversed the Montana Supreme Court. The court five to four said the government can't deny benefits to religion institutions that gives the secular ones. But Friar and Kagan joined with Ginsburg and Soda mirror is the descent.

But sometimes you're right there with the conservatives. A year ago, there was a case American Legion versu American Human Association that avows the forty five ft cross on public property at a busy intersection in Prince Gewige, County, Maryland, and the Supreme Court seven to two that it didn't violate the establishment clause. Kagan and Briar were the Conservatives or this term, there was a case Our Lady of Guadalupe

School versus Marcy Burreuth. It involved whether a Catholic school the fire lay teachers based on disability based on age. Seven to two of the Supreme Court said that religious schools can do that. Kagan and brian joined the Conservatives. Once more, Ginsburg and cent amor with a dissent. How far has it gotten from the idea that there shouldn't be government aid to religious institutions? I mean, how far

have they blurred the line? Well, not only have they blurred the line, they're now saying the government is required to give aid to religious schools when it gives that aid to secular schools. For decades, the litigation was about is your question implies, when may the government give aid to religious schools if it choose to do so without violating the establishment clause? Based on the Espinosa case I

mentioned in another since three years ago. I think the Supreme Court is saying, whenever the government gives aid to private secular schools, it must give that aid to religious schools unless doing so would violate the establishment clause. But very little violated the establishment clause for these justices. A case that got a lot of attention years ago. In fact, most people knew the name of it was Masterpiece Cake Shop.

Sure that was years ago. Do we now know, according to the Supreme Court, whether a business owner can refuse to serve clients because of religious objections to same sex marriage. We don't know the Answerpiece Cake Shop was a couple of years ago, and it involved a gay couple that asked a bakery to design and bake a cake to celebrate their wedding, and the owner of the baker, Masterpiece cake Shop, refused. They brought an action to the Colorado

Civil Rights Commission, which ruled against the bakery. The Colorado Court of Appeals as firmed, and everyone thought the Supreme Corps was going to deal with this underlying issue, how do we balance the freedom to practice one's religion against the desire for equality and stop discrimination against gays and lesbians.

The Court didn't resolve that issue. There's a case before the Supreme Court coming up Fulton versus City of Philadelphia and involves with the Philadelphia can refuse to contract with the Catholic Social Services to place foster children whose Catholic Social Service won't do so. With day and lesbian foster appearance,

that's the same underlying issue. And there's lots of lower cure cases that involved things like can a photographer or videographer refused to take pictures at the same sex wedding? Can flores refused to make floral range for same sex wedding? Can a stationary store refused and grave invitations for same sex wedding? And they're all about the same issue. How do we balance the freedom that's claimed to practice one

religion versus the quality concern but stopping discrimination. Instead of talking about a line between church and state, let's talk about a wall between church and state. So, if you look at the jurisprudence today, is there a wall? Has the wall been knocked down? I think the conservatives and the Court don't believe that there should be a wall that separates church and state. So I guess if I had to put it into the metaphorre, I think they're

obliterating the wall that separates church and state. Beginning with the Conservatives in the nineteen eighties, so I alluded to, they took the view that the government violates the Establishment Clause only if the courses religious participation. Nothing else violates the Establishment Clause. And so from their perspective, religious symbols on government property don't violate the Establishment Clause. They don't

coerce religious participation. Government aid to parochial schools so long as it doesn't course religious is fine, and um religious presence and government activities like prayer of town boy meetings doesn't coerce religious deistation. Now two Justices Thomas and Gorsets, have indicated they go even further. Justice Thomas has repeatedly said that he doesn't believe the Establishment Clause applies to

state local governments at all. Justice Thomas says the Establishment Clause was just meant to keep Congress from creating a national church derival the state churches that exist at the time. So, for Thomas, and now Gorsets has joined him, there could be a state that declares an official religion. A state could require prayer in public school olls. State Krokho or anything with the garden religion, and it wouldn't violate the Constitution from their perspective because it doesn't apply to state

and local governments at all. And tell us about the theory that you've expressed in your book. Our view is that there should be a law that separates church and state. The metaphor of a law separating church and state wasn't invented by liberal law professors. Was Thomas Jefferson who said so long ago, and we believe that that government should be secular, that the place for religion should be in people's lives to be that they wanted to be there.

Thanks Irwin. That's Erwin Chimerinsky, dean of the Berkeley Law School. His book is The Religion Clause is the Case for Separating Church and State. I'm June Grosso. Thanks so much for listening, and please tune into The Bloomberg Law Show every week night at ten pm Eastern on Bloomberg Radio. Intendent of