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Scalia’s Polarizing Religious Decision (Part 5 of 7)

Antonin Scalia’s polarizing religious decision in 1993 seems ready for the chopping block.  The Supreme Court justice wrote a decision that limited the free exercise clause of religion.  Dr. Sally Gordon, a constitutional scholar from the University of Pennsylvania says court watchers expect this decision to eventually be reversed.

Scalia’s Polarizing Religious Decision

GT:  It seems like there was another case involving Antonin Scalia that you talked about that kind of counteracted the Brennan opinion. Is that right?

Sally:  It did. It really cut it way back. So, that’s a perfect illustration of how uncertain our case law is, because it’s now getting ready for the guillotine. Justices have announced that they want to reverse it, and it looks like it may well go. In 1990, Antonin Scalia, who really was not a fan of the Free Exercise Clause, although he was a deeply religious man, he held that two Native Americans who had engaged in peyote rituals in Oregon and been fired from their jobs for doing so, did not have a right to collect unemployment insurance. The first case that really protected religious liberty in a profound way, was called Sherbert against Werner and that was decided in 1963, just like Abington School District. William Brennan wrote the majority opinion in Sherbert against Werner and said that a woman who refused to work on a Saturday, (she was a Seventh Day Adventist,) who was fired from her job for refusing to work on a Saturday, [she] deserved to get unemployment insurance, so a case very similar to the one involving the peyote rituals and being fired and all they wanted was unemployment insurance.

Sally:  What Scalia said is, “Listen, if there’s a neutral and generally applicable law and it’s been applied to you, you’re out of luck. Sorry, you need another right.” You need another right. It could be speech. It could be [something else.] And so, many, many scholars and lawyers began drastically retrenching. It was a very unpopular opinion. Congress was so ticked off at this, that Scalia had virtually undone the Free Exercise Clause, that they passed a law called the Religious Freedom Restoration Act in 1993, trying to reverse Scalia’s opinion.

GT:  Oh, wow.

Sally:  Yes, and it went back. There was a case involving a church in Texas that went back up to the Supreme Court. In 1997, the Supreme Court held that, as applied to the federal government, the Religious Freedom Restoration Act is unconstitutional. So, it took a while. But, about five years later, Congress passed a new law called the Religious Land Use and Institutionalized Persons Act, that is to protect people confined in insane asylums, prisons, and other institutional settings, as well as land use. So, one of the things you see, for example, in many suburbs, or in urban renewal in city centers, is they’ll prohibit churches or synagogues from locating there, in part, because they don’t pay taxes. And, in part, because they don’t produce reliable traffic. They’re episodic. So, there’s good city planning reasons not to allow that. But, it’s pernicious. It’s really pernicious.

GT:  A city planner could say, “I don’t like the Mormons. we’re not going to let you go to church here,” or the Jehovah’s Witnesses, or the Scientologists.

Sally:  They wouldn’t really say it that way. They’d say things like, soup kitchens are not a good idea for a flourishing downtown area. We don’t want people sleeping under quilts that you have to step over to get to the restaurant. That that’s how they put it, and I think that’s how they’d mean it. It’s very rare to see anyone sort of act that way.  The case I’m thinking of that that did feature something like that is a case called Church of Lukumi Babalu versus Hialeah, and it was it’s connected to the Mariel boatlift, which brought over a lot of practitioners of Santeria, which involves animal sacrifice. Santeria practitioner’s had kept quiet for a long time. But, they announced in the early 1990s, that they were planning to build a church in the City of Hialeah.

Sally:  This was a substantially Cuban versus Cuban battle. So, the Orthodox Catholics brought in a priest to tell the city council about how bad this is. The city council said things like, “Oh, we don’t want those voodoo nuts practicing here.”  So, it was all over the place, and you see that sometimes in that kind of internal debate. You see it sometimes with eruvs. Do you know what those are? So, for Orthodox Jews to carry on the Sabbath, they have to be within a certain sacred space. Generally, a very thin wire will get the job done, often strung on utility poles or other poles or light poles. You’ll see, for example, towns resisting an eruv, because they point to other towns where an eruv went up and the Orthodox took over and everybody else moved out. That’s often an internecine fight among reform and conservative Jews and Orthodox Jews. So, you can see that kind of targeting of a specific religion, in that case. But, really, it’s more about, do we want soup kitchens or outdoor feeding of the poor, in a downtown area when we’re really trying to bring in, oh, I don’t know, Starbucks, or fancy restaurants and so on.

GT:  Okay. All right. So, the Scalia decision seemed to pull back on some of the expansion of religion. Is that right?

Sally:  Or expansion of religious rights. But, I think it’s fair to say and I really want to emphasize this, the rule in Free Exercise cases is plaintiff loses. The Free Exercise Clause is not a happy place.

What do you think of Scalia’s opinion on the free exercise clause?  Do you agree?  Should Scalia’s decision better protect religious liberty? Check out our conversation….

Antonin Scalia's polarizing religious decision in 1993 seems ready for the chopping block. 
Antonin Scalia’s polarizing religious decision in 1993 seems ready for the chopping block.
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School Prayer Ban Led to Religious Studies! (Part 4 of 7)

Subscribe at Patreon.com/GospelTangents for full, uncut interviews or Gospel Tangents Website for transcripts.

In 1962, the Supreme Court banned school prayer.  It was a controversial decision to be sure, but Dr. Sally Gordon says that opinion paved the way for religious studies programs at state universities.

School Prayer Banned

Sally:  Of course, and I love talking about this stuff. In 1962, the Supreme Court of the United States held that a very short and, honestly, vapid prayer that had been composed by a committee commissioned by the New York Board of Regents, the public school directors, to open the school day, a very short prayer that called upon God to protect our country, our teachers, and may we learn well. I mean, it really was nothing. That’s not the exact language, but you get the sense. It was short. It was nondenominational, and it was challenged. It was controversial. Many school districts refused to do it. Rochester, for example, said we’re way too diverse. We’re not going to do that. But, in a town in Long Island, a family challenged. It was called the Regents’ Prayer. It went all the way to the Supreme Court of the United States. The Supreme Court said [that] governments have no business writing prayers. “No, this cannot stand.”  This was a very, very unpopular decision. Eighty percent of Americans disagreed. Dwight Eisenhower disagreed. For the first time, Catholics disagreed. They had brought most of the anti-school prayer cases before that, because the prayers were Protestant. In this one, it was a Jewish rabbi, a Catholic priest and a Protestant minister who sat down. It was prayer by committee. Can you imagine anything less meaningful? Anyway, it was a very unpopular decision. A year later, from right outside Philadelphia, a school district called  Abington School District was challenged by the family of a guy named Ellery Shempp, a very unusual last name.

GT:  One of the Three Stooges. Wasn’t that his name, Shempp?

Sally:  They were: Moe, Larry, Curly and Shemp. (Chuckling) Right. So, what was it?  Woo, woo, woo!

GT:  (Chuckling)

Sally:  Anyway, the case got to the Supreme Court. Court watchers, as we’re called, around the country, predicted that the court might well walk back the decision because it had been so very unpopular. Instead, they doubled down. This case involved the recitation of the Lord’s Prayer, not composed by a state and/or Bible readings, a few verses over the P.A. system at the beginning of the day. The Supreme Court said, “No, you can’t do that. You cannot teach students how to be religious. You can’t teach religion.”

Religious Studies

Sally:. There was a 90-page concurrence by Justice William Brennan, a liberal Catholic, who said, “You can’t teach religion, but you can teach about religion. So much of our history, our art, our music, our culture, is deeply informed by religion. Study that. Just don’t make people pray.”  Because you will never get universal agreement on prayer or on the Bible, right? Think of it. Douay-Rheims versus King James. Would the Book of Mormon count, right? So, you can imagine how complicated that gets. Brennan’s words were taken very seriously by a group called the National Association of Biblical Instructors who taught college. So, this second case was decided in 1963, Abington School District against Shempp.  In 1964, they changed their name to the American Academy of Religion. And to this day, religious studies scholars say, “We teach about religion.” They brag about how they never endorse or condemn any religion. They are students of religion. They don’t teach you how to practice. They study you, when you practice. Around the country, a new field was born: Religious Studies, the study, not the practice. Public universities began to create religious studies departments–the U [University of Utah,] right up the hill from us here. The U put in a religious studies department, and it’s very good.

GT:  Why doesn’t BYU have one?

Sally:  It’s a different approach. So, for religious schools, many of them don’t have religious studies departments. They have theology departments, or philosophy of religion departments, or ministry or mission courses. So, one of the things that happens is that public universities realized that the Supreme Court was talking to them. You can do this in state run institutions. So, Indiana University, UC Santa Barbara, those are the two premier public school religious studies departments, but they’re all over the country. The field blossomed As I said, Jan Shipps, who taught the world how seriously they should take the Mormon tradition, her book used the tools of religious studies. She talked about prophecy. She talked about Exodus. She talked about sacred space, the kingdom in the tops of the mountains, and sacred time, traveling into the Old Testament, as the Saints did, as they voyaged westward. So, I do think that we’ve learned a lot from religious studies.

Are you as excited as I am about religious studies, especially Mormon Studies departments?  Why doesn’t BYU study Mormons? Check out our conversation…

Dr. Sally Gordon discusses the 1962 case that outlawed school prayer, and I was surprised to learn that same case paved the way for Religious Studies.
Dr. Sally Gordon discusses the 1962 case that outlawed school prayer, and I was surprised to learn that same case paved the way for Religious Studies.
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Kody Brown’s Polygamy Case (Part 3 of 7)

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Kody Brown is the polygamist and star of the tv show Sister Wives. He sued the state of Utah to remove the polygamy prohibition in the Utah Constitution. Kody Brown’s polygamy case won at the federal level, but lost on appeal. Dr. Sally Gordon tells us more about the judge’s reasoning, and why the judge said the 1890 Reynolds decision would be reversed if it happened today.

Sally: The district court said Reynolds would not be decided the same way today, and the 10th circuit reversed. So, that’s a trial level federal court, and then the intermediate level., It’s called the Court of Appeals. There are various circuits. This is the 10th one. I live in Philadelphia, that’s the third one. So the 10th one reversed, and that held up. It did not go to the Supreme Court. My guess is the justices would love not to have to decide a case like that. But I didn’t talk to them about it.

GT: Did they tried to send it to the Supreme Court?

Sally: Yeah, I think there was a cert petition. It’s years ago now, but I’m pretty [sure.]

GT:. The Supreme Court said we don’t want to deal with this.

Sally: Well, they just deny the cert petition.

GT:. Okay.

Sally: So, there are many, many, many thousands of cases that they don’t hear. Honestly, the cases that they do hear, there’s either a great moment: you’re trying to subpoena stuff from the President. That’s pretty important. Or there’s a developing line of cases where the circuits, meaning those 3rd and 10th, and 5th and 7th and 1st, are starting to disagree with each other, so that we have conflicting rules out in the country. And it needs to have the Supreme Court step in and resolve it. So, that’s another [reason.] Or there’s original jurisdiction in the Supreme Court, when two states sue each other. They start right there. [It’s] the lawyers equivalent of judgment, up there with THE court. It is THE court. It is the gorilla. You call in the big boys when you go there. So, one thing: I do think there’s been substantial movement in marriage. There has not been a commitment to pushing past that boundary of two. My own sense is that there are a group of people who want to do that and call it marriage and a larger group, if I’m right, although we don’t really have great numbers, but a larger group of people who want to be polyamorous and live in communities that maybe are explicitly not marital and are not exclusive in those ways.

We get into further details. Check out our conversation….

Kody Brown's polygamy case won at first, but lost on appeal.
Kody Brown’s polygamy case won at first, but lost on appeal.