August 6, 2020
The following is an unedited transcription of remarks delivered by Sen Mike Lee (R-Utah) during The Supreme Court and Religious Liberty: The Top Court’s Impact This Term. Watch the full video here.
Sen. Mike Lee:
Thanks for all you do, for the Sutherland Institute. I’m a big fan and always appreciate the insights that you offer. And I also enjoy your efforts to connect members of Utah’s congressional delegation with the voters throughout Utah.
I wanted to talk to you about religious freedom today and specifically about a small handful of cases that have been addressed by the Supreme Court this year that deal with religious freedom. I’m gonna talk about two cases that were decided on the merits that are quite significant and, I think, will be for some time. And then I’m gonna refer to a third case, sort of a near miss before we take any questions that you may have.
First case I wanted to address is the case known as Our Lady of Guadalupe, which is short for Our Lady of Guadalupe School versus Morrissey-Berru. This was decided by the Supreme Court toward the end of the term on July 8th of this year. This was a 7-2 decision in which Justice Alito wrote for the Court. There were, like, two members in the dissent, Justice Sotomayor and Justice Ginsburg. The holding, in this case, was essentially the First Amendment protects the right of religious school rules, and places of worship, and other religious ministries to choose personnel, choose who performs vital religious duties. There’s something known as the ministerial exception that protects the rights of churches and religious institutions to choose their ministers, their leaders, and teachers of faith, requiring courts to stay out of employment disputes involving teachers of faith at religious schools. This frequently arises in employment discrimination cases, for example, where a religious institution will say to the federal courts, “You’ve got to stay out. This is our domain.”
Now, Justice Alito in writing the opinion for the majority of the Court, summarized the underlying issue as follows. He said, “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.” Now, Justice Alito correctly admonished the Ninth Circuit’s three-judge panel. It issued the decision that was being challenged in front of the Supreme Court for improperly minimizing and, sort of, casting aside or dismissing the importance of a teacher’s participation in religious instruction, just because she taught various subjects, including but not limited to religion. So she taught a number of topics, including religion but not limited to that, from a textbook citing an amicus curiae [inaudible] work brief. This was a great moment for me in that Justice Alito and a majority of opinions for the Court cited my brief. I previously served as his law clerk twice. First was when he was in the Third Circuit and then after he went on with the Supreme Court. I filed an amicus brief along with 28 other members of Congress and he cited that brief in his opinion.
As many of you know, religious elementary and secondary schools’ curriculum often weaves religious themes and religious teachings into subjects other than strictly theology. And teachers, especially elementary school teachers, often teach every subject, including religious doctrinal issues to their classes. So religious instruction provided by a 3rd-grade teacher as was an issue here, is almost indistinguishable from that of a religion teacher or a minister. And that’s why it was important for the Supreme Court to invoke this so-called ministerial exception in this case, in the Our Lady of Guadalupe case.
The other case I wanted to talk to you about today is known as the Espinoza case or Espinoza versus Montana Department of Revenue. This was decided just about a week before Our Lady of Guadalupe, on June 30th. In this opinion, it was a 5-4 decision in a majority opinion authored by Chief Justice Roberts and joined by Justices Alito, Gorsuch, and Kavanaugh. Dissent was written by Justice Ginsburg, and she was joined by Justice Kagan, Justice Breyer, and Justice Sotomayor. The holding, in this case, was the Free Exercise Clause prohibits Montana from excluding religious schools from participating equally in the state’s scholarship program for low-income students. In this case, the Supreme Court held that the government cannot, may not constitutionally, legally discriminate against religious schools that serve the same function as secular schools, just because they are religious. In other words, you may not discriminate on the basis of religiosity.
This decision, in that respect, is a big win for low-income students in Montana, who would benefit from the scholarship program to attend the school of their choice. And it has the potential in, I would say, the inevitability of becoming a win for others elsewhere. Now, Chief Justice Roberts’s majority opinion expands the Court’s previous decision, I think from 2012 in the Trinity Lutheran case where the Supreme Court found that a state program to improve playgrounds that denied funds to churches constituted religious status discrimination by finding religious status discrimination existed where low-income scholarship programs denied scholarships to religious schools. So this is a decision that significantly limits the application of Montana’s Blaine Amendment, in similar Blaine Amendments in the 38 states where they’re still on the books. And as most of you are aware, Blaine Amendments are language that was inserted into the state constitutions in many states about a century ago, in order to limit the influence of religious institutions on the school systems. And in some states, the Blaine Amendment has been interpreted very narrowly, very strictly. So what the Supreme Court has said is regardless of what your Blaine Amendment says, you may not engage in religious status discrimination. That is you can’t find that a religious institution is ineligible to participate in an otherwise generally available government program, simply because of the fact that they are religious.
So those are the two cases that were addressed on the merits, I told you I wanted to mention one other case that I referred to as a near miss. I would say the Calvary Chapel case, Calvary Chapel versus Sisolak. This is the Nevada case that was decided or I guess it’s better to say not decided two weeks ago. On July 24th, the Supreme Court declined to enjoin a lower court ruling that was geared towards taking down and acknowledge the unconstitutionality of a Nevada law restricting conduct within a church. Nevada’s law, as written and implemented, contains one set of COVID-19 related standards that apply to churches and it’s a more rigorous standard than the more permissive standard that applies to other business establishments, including casinos, and this ends up creating a problem.
Now, we had four members of the Supreme Court who dissented from the denial of this injunction of this stay application of this case, Justice Alito, Justice Thomas, Justice Gorsuch, and Justice Kavanaugh. Justices Alito, Kavanaugh, and Gorsuch, each wrote separate dissents from the denial of this relief. The most concise and brief of the three was written by Justice Gorsuch, and I thought I’d share that with you briefly. He summarized it in a single paragraph in which he says, “This is a simple case. Under the Governor’s edict, a 10-screen multiplex may host 500 moviegoers at any time. A casino, too, may cater to hundreds at once, with perhaps 600 people, each huddled at craps tables here and there and a similar number gathered around every roulette wheel there. Large numbers and close quarters are fine in such places. But churches, synagogues, and mosques are banned from admitting more than 50 worshippers– no matter how large the building, no matter how distant the individuals, how many wear face masks, no matter the precautions at all. In Nevada, it seems, it is better to be in entertainment than religion. Maybe that’s nothing new. But the First Amendment prohibits such obvious discrimination against the exercise of religion. The world we inhabit today, with a pandemic upon us, poses unusual challenges. But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”
So I think that very brief dissent from the denial of relief, in that case, demonstrated something very significant. Any five members of the Court who would have voted to grant the injunction against the implementation and enforcement of the Nevada law being implemented, that was subject to the challenge there. The fact that there were four frequent advocates and defenders of religious freedom who were willing to stand behind that position. That is Justices Alito, Thomas, Gorsuch, and Kavanaugh. The fact that the four of them were willing to speak out and the other frequent defender of religious freedom, Chief Justice Roberts was not, is significant, and I find it disconcerting. In any event, I think, it was a near miss. It was a really significant missed opportunity. As Justice Gorsuch put it, there really is no world in which that can be constitutional. That’s why I find it somewhat perplexing because they’re not willing to defend it on the merits and [inaudible] which at the end of the day, the Supreme Court lets stand a decision on the merits of that case that the Nevada law is okay. It’s, therefore, puzzling that they didn’t grant the injunction that was sought here.
With that, I’d love to answer any questions you may have.
Aaron Taylor, Sutherland executive vice president:
Excellent. Thank you so much, Senator. Let me go to your first comment on the educational case. You mentioned the Blaine Amendments, something we’re very familiar with here. What do you see as the future of the Blaine Amendments? And how do you see that impact? Is that something you think the Supreme Court will ultimately be ruling against in the future? How do you see that role now?
Yeah. I don’t think that Blaine Amendments have a very strong future. That is to say, I’m not predicting that Blaine Amendments will be deemed unconstitutional as a whole. I don’t see them as being struck down, especially in [inaudible] because, in order to meet that standard under United States versus Salerno, it would have to be established that they’re unconstitutional in all of their applications. Blaine Amendments are capable of being implemented and applied in a constitutional fashion. But in many circumstances, they may run afoul in and as applied challenge in light of this more recent precedent. I think you’ll see Blaine Amendments increasingly being narrow as a result of this decision. And certainly, you won’t see selective or religious-based discrimination against a particular school or religious enterprise based solely on a religious nature.
Thank you for the insight. That’s helpful. Let me turn to a second topic you mentioned on really just limiting. You recently wrote a letter about state and local government restrictions. Can you give us more insight into what prompted that letter and how you see the Supreme Court case that you mentioned, what impact it might have on institutions within the city of Utah, such as BYU?
Yup. A number of us have asked officials within the Trump administration including Attorney General Barr to look into whether and to what extent religious liberties are being infringed as a result of COVID-19 activities.
Now, to be very clear, under Employment Division versus Smith, a government has power to…governments including states and localities have authority to adopt and implement and enforce generally applicable, religiously neutral rules governing the health and safety [inaudible]. As with the Blaine Amendment, there’s nothing categorically constitutional problematic or unconstitutional about COVID-19 response efforts or legislation directing certain sectors of the economy be subject to certain restrictions. There is, however, a big problem with the selective implementation and enforcement of those mechanisms.
If you remember in Kentucky, a few months ago, there was an issue with drive-by church being excluded, and church was being specifically excluded from the list of other activities that were permitted. That’s where government runs afoul, that’s where you’ll run into First Amendment problems, that’s where you end up violating religious freedom, is where you identify a rule of general applicability that is imbued with religious neutrality, and then you implement it selectively, as between religion and irreligion, or as between one particular religious viewpoint or denomination and another.
Okay. As a reminder for our audience, you’re listening to Senator Mike Lee speak on the Supreme Court and their recent decisions in this term. My name is Aaron Taylor. I serve as the executive vice president for Sutherland Institute. And we’re now on our Q&A session.
Senator, let me ask you this question. Do you see the cancel culture and freedom of speech issues as having a spillover effect on religious liberty?
Certainly can, and I think any time you see populist movement of any sort, regardless of its objective, if it’s a populist movement that gains a lot of popularity and there is a sudden groundswell or uprising, whether at the polls or in the public square, and that uprising…especially with that uprising results in government assuming more power in order to address whatever the uprising is, or in this case, in order to respond to demands of certain groups or entities asking for a government response to cancel culture or enlisting the government’s assistance in canceling unpopular ideas.
Anytime you see government authority expanding, there is necessarily a corresponding risk to liberty. Sometimes, that means liberty generally or liberty of one sort or another, it almost always includes an encroachment into religious freedom. As I sometimes say, you know, when Godzilla steps on your house, Godzilla’s not necessarily doing so because Godzilla sees you and then singled out you for treatment, either because he hates you or he thinks you look particularly tasty when compared to other people. No, when Godzilla steps on your house, most of the time, you know, it happens from time to time, it’s because Godzilla’s huge, and your house happens to be in the way. And he’s clumsy.
I was giving that remark once and someone pointed to me, it could just as easily be a Stay Puft Marshmallow Man as seen in one of the final scenes of the original “Ghostbusters” movie, where he starts walking down the street in New York, I believe, and this giant 10-story high Stay Puft Marshmallow Man steps on a church, thus prompting the Ghostbusters to aim their weapons at the giant Stay Puft Marshmallow Man, shouting the words, “Nobody steps on a church in my town.”
This is what government is like. When government gets big, government gets clumsy, it inevitably becomes reckless of individual liberties. And that is certainly true with religious liberty. We got to be on the lookout for that.
Here’s one more on religious liberty, coming from the audience. Some people wonder if religious freedom harms other groups or even the non-religious. Others say religious liberty protects everyone. How do you respond to that?
Okay, religious liberty has to be revered and respected as a concept at any…independently of utility to any one individual or any one group. So I suppose the same critique could be raised of expressive liberty, of freedom of speech, freedom of association, freedom of the press. You could say that in some circumstances, the exercise of any one of those liberties could come at the expense of somebody else.
That doesn’t make it okay to trample. Quite to the contrary, it is the unpopularity of minority views, whether they’re religiously minority views, politically minority views, or otherwise. It’s the exercise of these rights that we’ve decided, as a society, to protect. That’s the whole reason to have a constitution, in fact, is to limit the power of government, because governments are powerful. Governments are, by their very nature, neither omnipotent nor omniscient. They are simply organized collective official coercive force.
So we decided as a society that there are certain kinds of things that governments must not do, must never do. And one of them is just, you know, extinguish expressive conduct or to speech or the rights to freedom of the press, and another is the free exercise of religion.
So here, as there, just because someone doesn’t like it, just because somebody might feel like the exercise of those rights runs contrary to what they would like to see or maybe even runs contrary to their interest, it still doesn’t make it okay for government to interfere with that right. We’ve taken that off the table, as a matter of constitutional law. And so we’re not really at liberty to just decide that because a certain set of religious beliefs might be inconvenient or offensive to some people, that we’re going to squash them.
Excellent. And I know we only have a few minutes left. Let me ask you one last question relating to judicial activism. Do you believe that…is the impulse toward judicial activism something that can be truly be overcome by simply nominating better justices or does it require an exercise of constitutional checks and balances on the courts’ authority? Put another way, is the drive to make the law built into the human nature of the justices themselves and therefore something that better vetting cannot overcome? And what does that mean for legal conservatives who believe in judicial restraint?
Okay, first of all, I want to say a word about judicial activism to frame my answer. The short answer to your question is I think it takes both, but I want to be clear about what I mean. The impulse…including the impulse by many on the right, many people like me, is often to decry judicial activism. In many ways, it’s not just activism that is concerning.
When we focus excessively or exclusively on judicial activism, we ignore the evil twin brother of activism, which is passivity. In other words, it is equally bad when a jurist decides to use judicial power in order to invalidate a constitutionally legitimate law, wouldn’t call that activism, as it is for a jurist to decline to invalidate as unconstitutional something that is, in fact, unconstitutional.
In other words, the impulse that we’re after, the norm that we’re after, the aspiration that we should have as a society is to have neither judicial activism nor judicial passivity. It is equally repugnant to the constitution and to our system of laws, to our constitutional republican form for government to have a jurist act where he or she shouldn’t or fail to act where he or she should.
That gets back to your question, how then do we do that? I don’t think it can be done solely by means of selecting better judges. I think some of that can be and that when we go out of our way to look for jurists who understand the difference between will and judgment, as articulated by Alexander Hamilton in Federalist 78, explaining that will is something exercised by the political branches of government, especially the legislative branch. It is forward-thinking, it is norm-setting. It talks about what should be. The judicial power is about judgment. It’s rearview mirror-looking. It’s looking at what has been and what the law is or was or has been as of the date or dates relevant to a particular dispute properly before the jurisdiction of the courts.
So we do need to find people who understand the fundamental differences between will and judgment, between Article Two power in the executive, Article One power in the legislative branch, and Article Three power in the courts. But that can’t be the sole thing that does it, because without a society, without a system of government, without the two political branches also having a commitment to sound law-making and to making sure that the laws are implemented and written in a way that’s respectful of the constitution, the courts can’t say those. The courts can buy us time, but they’re sort of like the pumps on the Titanic. They can delay the sinking of the ship for a while, but you can’t save the ship unless you’ve got all three branches of government functioning properly.
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