Congress shall make no laws no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people to peacefully assemble and to petition the government for a redress of grievances. Two come first, which is where religious freedom is often called americas first freedom. Why religious freedom is often called americas first freedom. Establishment actually comes even before religious freedom. Often, people dont understand what establishment is. Now, in 1833, massachusetts disestablished. And what that means is people no longer had to pay taxes to support my own religious ancestors, the congregationalists. Now, if you want to know why establishment went away, imagine how popular it was to pay taxes for somebody elses preacher. Right . That is one of the reasons it went away. But also, that is a period in American History of revivalism. People started going to camp meetings, they started lifting it up, singing songs, and they didnt like having to support these basically european style formal religion, everybody setting like this. Sitting like this. Wouldnt you rather go to a camp meeting and sing . So, that is the end of establishment in that sense. It is not, as we will see this evening, the end of issues about establishment. Similarly, free exercise of religion is difficult for people to understand, because it sounds simple. My own son, my adult son who is said, hasnt that really been settled, mom . He is a physicist. What does he know . [laughter] one phrase that does not appear in the constitution is separation of church and state. And that is often misunderstood. Separation of church and state is actually paraphrased from a letter that Thomas Jefferson wrote to the danbury baptist. It was published in the paper in massachusetts. Im going to read some of it to you. Believing with you that religion is a matter which lies solely between man and his god that he owes account to none other than for his faith and his worship. That the legitimate powers of government reach actions only, not opinions. I contemplate with solemn reverence that the whole American People have declared their legislature shall make no law establishing religion or prohibiting the free exercise thereof. Thus, building a wall of separation between church and state. Adhering to this expression of the supreme will of the nation, on behalf of the rights of conscience, i shall see with sincere satisfaction the progress of those sentiments that restore to men all his natural rights, convinced he has no natural right in opposition to his social duties. A lot of rights of conscience in this letter. This crucial language that the framers used was a relatively new idea. That the king did not control what you might believe. A new idea. Tonight, our panelists will reflect on the constitutional promise of free exercise and the prohibition against religious establishments. Establishment. We will try to keep this pretty tight. It is a big subject. We are going to look at the Masterpiece Cake shop versus Colorado Civil Rights Commission and denver baker v. Jack phillips. You may have seen this in the paper if you live around colorado. This cake for a gay couple citing that marriage is only a union between man and a woman. Were he to create a wedding cake for an event that celebrates something that goes against his understanding of the bible would have to be a personal endorsement and participation in the ceremony. The couple sued, alleging that phillips had engaged in prohibited discrimination under colorados public accommodation law. He asserts his right to freely exercise his religious belief. The second one, which has been more recently decided, is the American Legion v. The american humanist association. The state of maryland maintained a 40 foot latin cross in the median of a public highway. The cross was first erected 94 years ago as a world war i memorial. Sometimes called the bladensburg peace cross. Residents challenged the acrossents display of as an unconstitutional establishment of religion. I would like to remind you that any of the material this evening could be on the final exam. [laughter] and with that, i am going to turn it over to mr. Shackleford. [applause] mr. Shackelford i have been fighting religious freedoms cases for 30 years. And in that time, i have represented all faiths. Catholic, protestant, people of the jewish faith, muslim, native american indians. And so, i thought, if we start this discussion if people dont care about religious freedom, they are not really they are really not going to be that into what we are saying. So let me start with the first why should you care about religious freedom . If youre a person of faith, that is kind of obvious. But what if you are not a person of faith . Should it be important to you . And the answer is yes. Our founders called this the first freedom, because they understood that if you lose this freedom, you lose all your freedoms. Theres a lot of ways i can describe this. But the quickest way i can do this is, the one thing that a totalitarian regime will never allow our citizens who hold an allegiance to one higher than the government. When you see that oppressive regime coming into force, you will see the first flashpoint will be religious freedom. If you lose it at that point, you will lose it all. This has been seconded over and over again as i speak around the country. Oftentimes, i have people come up to me afterwards, particularly from Eastern European countries, who say, i am not a person of faith, but i saw this happen in my country they took down the religious some bulls, and within months, we all lost our Political Freedoms. A number of these people handed me checks because they want their Political Freedoms. Number one, i think this is something everybody should care about. Number two, some people might say, is there really a problem with religious freedom in the u. S. . Are there any battles going on . The answer is yes. We keep track of every years survey of all the cases. They are not only increasing, they are increasing at alarming rate. From my own experience, seven years ago at the civil liberty institute, we had 47 cases. Last year, we had 447. So the increase is dramatic. And especially against minority faiths. Most of you probably will not be able to see this. This is a picture of a synagogue we represent in los angeles. This is the second time this synagogue has been defaced. You can see there is pain thrown all over it. We are in the sixth lawsuit. It is trying to keep the synagogue from existing. We have those cases in los angeles, dallas, new york. In dallas, for instance, these are Orthodox Jews who walked to who walk to the synagogue. The Sticking Point at this point is that they dont have enough Parking Spaces. They dont need Parking Spaces to walk to the synagogue. But if they can keep them from having a synagogue, they all have to move. That is the point. They are trying to move these people out of their community. And this is a picture of what happened to the rabbis car. I dont know if you can see this. This is not in germany, this is in the u. S. So i just want to focus on the fact that there are battles on religious freedom in the u. S. This is an important issue. This is the basis for the founding of our country. So let me get to the subjects we are supposed to talk about tonight. We are talking about one major case that has been recently decided by the u. S. Supreme court. Let me start with the establishment clause. The case that was mentioned is cross case, but its actually the American Legion v. The American Human Association case. In that case, you had a memorial, a large cross that was put up almost 100 years ago by mothers who lost their sons in world war i and by the American Legion. It was the 49 men in maryland who lost their lives in world war i. That memorial was originally put up on American Legion land, and it sat there. If you go to look at it, it is a nine foot wide, 2. 5 foot up and down plaque listing these individuals who died. After about 40 years right when roads were being built right outside of washington dc, as they build the roads around this, the government took over the property for health and safety reasons, and all of a sudden, this memorial is now in government property. But the government did not want to disturb a Veterans Memorial, so they didnt. Decades later, the American Human Association comes along and says, hey, there is a large cross on government property, this violates the establishment clause. And they filed a lawsuit. In this report, our client is the American Legion. We were the ones that had this case in the Supreme Court. In the District Court, we won. They said this is not a violation of the establishment clause. The establishment clause is there to not have a National Church established, cannot be to not be forced to contribute to it. The idea that a Veterans Memorial has to be torn down because it is in the shape of a cross is something our founders would find bizarre, i think. So we made those arguments and we won a District Court. In District Court. In the court of appeals, the threejudge panel ruled 31 this was unconstitutional under the establishment clause. In fact, one of the questions or statements in the oral argument by one of the judges was, why dont we just cut the arms off the cross . Because that way we will not have to destroy it and yet it will not offend anybody anymore. We knew at that point we might be in trouble in that case. The 21 decision was against us and the ruling was this was going to have to be moved or destroyed. If it was moved, it would have had to be destroyed. It is not in a shape that it can be removed. And went to the Supreme Court. It went to the Supreme Court. This case is important because of the impact a decision would mean either way. If you tear down and say this is unconstitutional, this piece peace cross up for almost 100 years, only two miles away from this is Arlington National cemetery. You would have to go into arlington and take down the law freestanding crosses in arlington. In fact, you would have to go in pretty much every community of every state of our country where there are religious symbols, stars of david, crosses throughout the landscapes. There would be a religious cleansing that i think most americans could not conceive of. So we argued at the Supreme Court that there is no way that this is a violation of the establishment clause. In fact, we argued there is a case that we shouldnt even be here. The only reason we are here is not because of what the constitution says, but because of the 50yearold lemon case, we think aptly named, then has that has been applied to attack all kinds of religious symbols, religious history and traditions of our country that we think is not what the constitution says. They created things like the offended observer standard, where it means that if somebody walks through a community and sees a religious symbol on government property, that it makes it a violation of the establishment clause. Which is not anywhere new what near what the establishment clause says. They are talking about an establishment like a National Church, picking one denomination, forcing people to support that. And so, we argued in the Supreme Court not only should you uphold this, but you need to get rid of lemon, because it is being used to attack religious symbols and religious practices across the country, and it is never what our founders intended or what the constitution says. The decision of the Supreme Court came down just two months ago, and we are very pleased to say that the veterans piece peace Veterans Memorial cross was upheld. It was a 72 decision. But like most things in the Supreme Court, it was not a real simple 72 decision, because there were seven different decisions handed down. In my view, the lemon case and the lemon test being used is dead. That was being used is dead. Many commentators are saying that. They said in this they did not officially say it is that. They said in this case lemon is a bad test and is not effective, it is creating all kinds of it is making the government hostile to religion, it is creating all kinds of problems and has been for decades. It is time to put it aside. The court did not follow lemon in this case. In fact, they said there is a presumption now that from now on, any of our longstanding symbols, practices, even religious ones, are presumptively constitutional. We dont go on a search and destroy mission trying to score scrub out the religious parts of our history and heritage in the country. And so, that decision has been handed down. May go quickly, because im running out of time. Let me go quickly, because im running out of time. The Masterpiece Cake shop case is a case that was mentioned with Jack Phillips, a christian man who said he was opposed to samesex marriage. Two men came in and said we want you to do a wedding cake for us. Jack said, look, i will bake you a birthday cake, you can purchase any of my bakeries, but i cannot create a custom wedding cake because that would violate my faith and my beliefs about samesex marriage. I would be participating in and expressing something that i dont believe in. And they went to the Colorado Civil Rights Commission, and the Colorado Civil Rights Commission found Jack Phillips in violation of their laws. They said this is discrimination. And they told him they could not he could not do wedding cakes anymore if he was going to take this approach. Which half of his business what happened on. He had to let go of half of his employees. He was also ordered to go to a government Reeducation Program about his belief on these issues. He filed a lawsuit. He said this violates my free speech and free exercise rights. The Supreme Court said, look, this is normally a case about a lgbt statute protecting the rights and their freedoms, versus the fundamental First Amendment rights of free speech and freedom of religion. They said in this case, we really dont have to go to that, because in this case, the Colorado Civil Rights Commission was itself engaging in religious bigotry by how they handled this case. They were not neutral. They were discriminatory. Why do they say that . Number one, because of the statements of the commissioners. The statements of the commissioners were very antagonistic to those of faith who held the belief that samesex marriage was against their biblical beliefs. Secondly, they said it was because of how they handle other cases. In addition to Jack Phillips, who was punished, you had another person go to three different bakers and say i would like you to do a kick that says a cake that says samesex marriage is wrong. They refused to do a cake saying they were offended by that message. That person then went to the Colorado Civil Rights Commission and said they are discriminating against me and what i am wanting to do with my cake. They said no, those bakers were offended and had a right not to do those cakes. The Supreme Court said you are treating people differently. This religious person is being treated differently. Its like if youre on one side of the issue you are treated one way, and on the other side of the issue the government is treating you another way. This is discrimination. I think both sides were decided correctly and show a trend of us moving away that is really good to providing more religious freedom. And i think we will see that in the future because of the court that we have. I look forward to the discussion and now bringing up mr. Clark. [applause] mr. Clark hello. Thank you to the vail symposium for inviting me to participate in this panel. There is no debate religious that the free exercise of religion is of foundational importance in our country. And it should come as no surprise that i believe religious exemptions from certain laws have a legitimate place in our system of order liberty. Ordered liberty. I was the general counsel of the United Church of christ, which in 2014 successfully brought a lawsuit declaring north carolinas criminalization of the religious solemnization of samesex marriages to be an unconstitutional violation of our clergys and congregants rights to freely exercise the religious beliefs. However, there is debate about where the place for religious exemptions is. For example, the courts have recently been called upon to resolve questions such as whether business providers of goods and services frequently used in Wedding Services may decline to provide goods and those goods and services when the Business Owners religious beliefs do not embrace samesex marriage. Constitutional statutory standards, old and new, provide guidance to resolve this National Debate in cases like Masterpiece Cake shop. And do appropriately balance the competing interests. The Supreme Courts current constitutional doctrine distinguishes between laws that target religious practices and neutral laws of general applicability that conflict with the commitments of religious believers. The Supreme Court held in the case of Employment Division versus smith that requiring adherence to a neutral generally applicable law that was enacted for reasons unrelated to religious suppression does not violate the free exercise rights of a religious adherent, even though the law has the fact of incidental effect of suppressing religious exercise. Laws ensuring equal access to public accommodations and prohibiting discrimination are neutral because they are not specifically enacted in response to and with the purpose of frustrating anyones religious exercise. And these laws have general applicability regulating discrimination against samesex couples regardless of whether such discrimination is based on religious or other beliefs. Accordingly, under the Supreme Courts current jurisprudence, current free exercise jurisprudence, religious objectors cannot show that the antiDiscrimination Laws violate their free exercise rights under the First Amendment. And to the best of my knowledge, every court to address the issue agrees. That being said, i have reservations about the standard enunciated by the court in Employment Division versus smith. It arguably is intention with the constitutional text the original understanding and the moral imperative to detect to protect unpopular or overlooked religious minorities. I believe that the free exercise of religion clause should be read as it was before the smith decision. And as is now provided for under many religious freedom restoration acts. To provide a right to a religious exemption from any law unless the government can demonstrate it is furthering a compelling interest with impact with the least possible in fact on the religious believer. I find the antiDiscrimination Laws passed this more stringent test. The states interest in providing discrimination and providing commercial services and goods is not just important, it is compelling. There is no less restrict it restrictive means by which the government can achieve its compelling interest and in eliminating discrimination than prohibiting it. As the Supreme Court has recognized, no action is more contrary to the spirit of our constitution or more rightfully resented by a citizen who seeks only equal treatment than a deniable service by a business the general public. The court has declared that eliminating discrimination and ensuring equal Access Service serves compelling state interest of the highest order. Any argument that the baker and Masterpiece Cake shop is willing to serve all people because he will sell cakes to lgbtq couples for nonwedding celebrations is wanting. Public accommodation laws exist to prevent not only outright exclusion, but also separate and unequal treatment. Similarly, a suggestion that religious objections should be accommodated where there are other wedding goods and Service Providers that do not discriminate on the basis of Sexual Orientation and those samesex couples can go elsewhere is faulty. The governments interest lies not in maximizing the number of establishments that do not discriminate against the protected class, but in to zero the number of establishments that do. The conduct in issue in classes like Masterpiece Cake shop, making a cake for sale, is commercial activity for profit. Where the claim for an extension exemption involves forprofit conduct in the commercial space, the states interest in protecting the rights of all individuals to participate in the marketplace is at its zenith. The claim of the individual seeking the exemption in order to selectively refuse service on religious grounds is at its weakest. Requiring Business Owners to provide their goods and services equally does not require them to endorse against the religious beliefs for the purpose those goods and services are put. The effect of the nonDiscrimination Laws have on the owners speech is only incidental to the discriminatory conduct. Everyone can appreciate the difference between acts a person sponsors with conviction and those a person permits because they are legally required to do so. All Constitutional Rights are subject to limitation. Freedom of speech, freedom from selfincrimination, the freedom to be secure against unreasonable search and seizure, all have defined boundaries. Thus religion freedom does not mean it provides a blanket exception to laws that protect our neighbors. To hold otherwise would make every person a law unto themselves. Refuse tolet bakers bake a cake for an interracial couple on religious grounds. We cannot allow people to burn down other peoples churches because their religion compels him to do so. There are contexts in which religious exemptions do make sense and the government interest is not compelling. Folks whose religion forbids possession of photographs should be allowed to get drivers licenses and use some form of verifiable identity information. Military personnel, kids in school, lawyers in court should have the right to wear religiously required head coverings even in the face of neutral generally applicable prohibitions. And so, there is a spectrum of potential exemption claims. Even as a society deeply respectful of religious rites and willing to accommodate a fair number of such claims still needs to draw a line somewhere. Religious views should never excuse failure to adhere to laws , advancing government interest where nontrivial harm to others will occur. With respect to establishment clause jurisprudence, and the cross case just as the opinion , for the majority states the court would extend a presumption of constitutionality in cases involving longstanding monuments, symbols, and practices. He noted that retaining monument symbols and practices is quite different than erecting or adopting new ones. Onargued that the cross took a secular meaning when used in world war i memorials in particular. Concluded, the cross is undoubtedly a christian symbol, but it should not blind us to Everything Else that the cross has come to represent. For some, this is a symbolic resting place for those who never returned home. For others, it is a place for the Community Together and honor veterans and their sacrifices for our nation. For others, it is a historical landmark. For many people, destroying or defacing the cross that has stood undisturbed for nearly a century would not be neutral or further the ideals of respect and tolerance embodied in the First Amendment. For all of these reasons, the cross does not offend the constitution. There might be something to be removingthe fact that an old religious monument bears a certain negative meaning. A concern i have is that government use of religious symbols degrades and exploits religion itself. The secular meetings presented to and opinions presented in efforts to minimize its religious meaning are offensive to many christians. The cross symbolizes the christian story about christs death and resurrection. It represents the gift of jesus, offering the promise of eternal life. The secondary meaning to honor the christian debt is based on is based on dead this promise of eternal life. It is not a secular meaning of the cross, but an application of the meeting. They should be concerned about the implications of the court in effect saying that one reason the cross can continue to exist is that in context, it is not so religious after all. The court has ruled that the cross may stand, but at what cost to christianity . Is this the definition of a purex victory . Moreover, a problem of the monument from an establishment clause point of view is not just the cross but the plaque at the this memorials , cross dedicated to the heroes of prince georges county, maryland who lysed who lost their lives. Religion should not be used to bolster the states secular purpose. Making a cross a war memorial does not make the cross secular. It makes the war memorial sectarian. The proper and constitutional relationships between the government and religion in my view is the strict separation and maintenance of separate domains, inspired by roger williams, and articulated in James Madisons remonstrance against religious institutions. In summary, i am opposed to constitutional right religious exemption from a law where the law advances a compelling interest and nontrivial harm is imposed on others. I believe we best protect religion from the divisive effects of government interference like keeping government out of religious matters. Thank you. [applause] clearly we are off and running. Opiniontice alitos suggests, as don just argued, that because they are longstanding, they are presumptively constitutional. How old does a monument have to be to have the religion leak out . Pres. Shackelford i do not think very long. Two points, number one, i will read from the statement. A government that roams the land, tearing down monuments and scrubbing away references to the divine strikes many as aggressively hostile to religion. I think that is now over. The argument is now, what do they mean by longstanding . One of the arguments made by Justice Gorsuch that i think is correct, i think the court was saying that the type of practices and symbols that are longstanding. For instance, one of the practices that are longstanding is prayer to open up government meetings. The founders did that. They paid for a chaplain out of the federal treasury and they clearly did not think that was a violation. What if your local city for the first time next week said we are going to open our meetings in prayer . Would that not be longstanding and not be protected . I think it would be protected because it is the type of practice, symbol, etc. That has been here from the beginning of the country and would be consistent with what the founders had in mind with the establishment clause. Dr. Brooks thistlethwaite perhaps you care to talk to each other. Don just argued that it is insulting to christianity because you are sitting a giant cross, the symbol of christianity, is secularized. How is that not taking the powerful central symbol of christianity and moving it into a secular realm, which is insulting to christianity . Did i summarize your point correctly . Mr. Clark that is one of my concerns. Other things i would lift up is while the court has not held that this presumption exists for longestablished and existing monuments, practices and approaches, and while it may not be religiously divisive to maintain those longstanding symbols, it certainly would be religiously divisive for a government to start erecting new ones. I dont think the cross case should be read as a green light that monuments such as that 40 foot tall latin cross can be established by governments in the country. I also think that the context in which these religious symbols are used is extremely important. For example, i would take exception with kelly saying that we need to protect against the threat of someone going into Arlington National cemetery and pulling up the crosses on the graves of people honored in that cemetery. In that context, those religious symbols, crosses and stars of david, are associated with the individual honored in that particular grave. That is quite different than having a religious symbol of one faith unilaterally stand as a memorial to all war dead or to represent an entire population. Pres. Shackelford i was not talking about the markers on the graves in arlington. In arlington, there is a 24 foot tall cross, the cross of sacrifice. There is a 10 foot tall cross not associated with one individual. The tomb of the unknown soldier says known but to god. Peace piece cross cross came down because it is religious, i do not see any way he would have to go to arlington to tear down those freestanding crosses. This idea that you can keep all the old but cannot add anything new, that would discriminate against minority religion because most of what we have is typically christian, therefore it would be a way to keep from having any other monuments that have religious symbols. If you are in pittsburgh, what if pittsburgh decided they wanted to honor those who died in the horrendous attack on the synagogue by putting up the star of david and putting a plaque underneath it . I dont think theres any establishment clause violation by doing that, to respect and honor those who died. I do not think this division between old and new is something we should follow. I think we have religious people heritage and with religious and secular symbols, and i do not think we should take an approach that we do not allow religious symbols. We can have both and it is ok. I think we do. There is almost no way to avoid this. Go into the Supreme Court, moses is holding the 10 commandments. Go into the Jefferson Memorial and you will see him talking about liberty from god. You see this all over the place. It is just part of our history, our heritage. As long as there is religious freedom for everybody and nobody is having to support something they disagree with, i think it is fine. I do not think that we need to scrub the divine or religious comments from our memorials across the country. Dr. Brooks thistlethwaite it seems to me that in your example, it is constitutionally permissible for pittsburgh to erect a religious memorial , in effect establishing religion. Pres. Shackelford i do not think it establishes religion. I think the founders were talking about establishing a National Church and have people support that. It was an establishment of religion that they were concerned about. Just because the government does something and it has a religious symbol, and does not make them a violation of the establishment clause. They were after coercion. They wanted freedom. May wanted people to be free to live out their faith and not be coerced to support something that they did not believe. Dr. Brooks thistlethwaite i am a taxpayer in pittsburgh and i have to pay for the upkeep of this memorial. Do you have any comments on pittsburgh erecting a religious monument . Mr. Clark if it is related to a single religion or denomination, i think it is problematic for the government to be doing that. It is black letter law that not only does there have to be equal treatment among religions, but the government also has to be respectful of nonreligion, so the government cannot be in the business of promoting even religion itself. Context is key in establishment clause cases. So with respect to moses and the 10 commandments appearing in the Supreme Court, it is in the context of being next to hammurabi and the hammurabi code. A series of different types of lawgivers. In the Supreme Court context, moses and the 10 commandments being part of examples of numerous types of lawgivers does not establish religion. But to single out a single faith and have the government endorsing that i think is violating the clause. Dr. Brooks thistlethwaite i will keep faith with the schedule and move on. We have had 10 minutes of exchange on this and it is my job to be timekeeper. I would like to move on to the Masterpiece Cake shop decision. How are these described in the Supreme Court decision . How will these sincere religious beliefs not result in a communitywide stigma . Lgbtq people are subjected to indignities when they seek goods and services. They are excluded from what is a relatively normal getting a cake to honor my wedding. How can the Government Support people being in a communitywide, not individual but communitywide stigma . Which it will result in. Pres. Shackelford masterpiece does not answer the question you are saying. Masterpiece says that the government cannot be religiously biased in their tribunal and do things like make disparaging comments about religion against one of the plaintiffs, the person they are supposed to be adjudicating. I will give you a quick example of one almost exactly like masterpiece, one of our cases. It is a case out of oregon. A wonderful family. They have five children and melissa started baking goods. People liked it, it grew and through many years they built up to where they could have a bakery. Their plan was to pass this down to their children. Someone came in, two women and they said they wanted to buy baked goods, and they said, we are happy to sell you baked goods. Then they said, we want you to do a cake for our wedding. Melissa, her wedding cakes were custom, therefore she had to make them from scratch and she was very serious about what she believed about marriage. The sacredness of marriage and biblical context. She always interviewed the clients and put something biblical in there. They told him, we cannot do the cake, we could do Everything Else and we are happy to refer you to someone else. The state of oregon came after them. They were fined 135,000. Their business is now bankrupt that they were going to pester their children. They were told not to speak publicly about their views because it might cause mental anguish to the couple. This is where i am connecting to the masterpiece case. The commissioner who made the ruling, before they airhead hearing, publicly stated that their beliefs needed to be rehabilitated. That is not due process. That is what masterpiece is talking about. You cannot have a religiously biased court or commission that says the kind of horrible things they said about Jack Phillips, that you cannot bring your religion into commerce. They compared him to the holocaust and slavery, his beliefs, said they were despicable beliefs. That is not a neutral tribunal. That is what masterpiece is talking about. We need neutral tribunals. Dr. Brooks thistlethwaite you are nodding your head. Mr. Clark we can find Common Ground on this. The Supreme Court has made it clear, and appropriately so, that adjudicators of these kinds of claims have to be neutral but also respectful of religious beliefs. There is no disagreement about that. That is the proper role for adjudicators to take. The question where we have some disagreement is, where do you draw the line with respect to where exemptions, from anti Discrimination Laws and any law or really, is drawn with respect to accommodating religious exercise, free exercise beliefs. One case i would want to tease out with you, my understanding is first liberty has a case a retired minister. He is a tenant at an apartment complex. If i understand the case correctly, he was wanting to conduct a bible study in the commons room of his apartment complex. The apartment complex told him, no, you cannot do that. He wanted to conduct it inside his own apartment and the apartment complex said, you cannot do that either. My understanding is with first libertys support, you filed a lawsuit against the apartment complex, arguing in part that their actions are a violation of both state and federal fair housing statutes, which prohibit discrimination against someone for their religious beliefs. I guess the question i would pose to you, using that as a jumping off point for a hypothetical, if the apartment complex was owned by an individual and that individual said that my religious beliefs are that there should be no homage paid to any god but my god, and you are conducting this bible study, using my apartment facility, violates my religious beliefs. Would you say that is an exception to the fair housing antiDiscrimination Laws . Would you be flipping sides and no representing the owner of the apartment complex . Pres. Shackelford the religious owner of an entity could conduct that entity in accordance with their faith. People know that when they come in, but what you cannot do is be a corporation or government, weve had government and private, in Senior Citizen facilities saying you can use any reasonroom for except studying the bible. We have defended them. That is a violation of federal and state law. But if someone wanted to do a religious housing unit, and i think some exist, run by churches and denominations they have a right to run their housing in accordance with their biblical beliefs and follow those beliefs. Mr. Clark so it would be ok for an individual renting an apartment to say, you cannot conduct your bible study in the apartment you are renting, you can go elsewhere and rent an apartment from somewhere else . Pres. Shackelford sure. It is my apartment. I can control what happens in my apartment. Mr. Clark how is that not one step removed from i am not going to rent to africanamericans or women because of my religious beliefs, or im not going to rent to muslims because it is against your religious beliefs . Im talking about the owner renting the apartment. Pres. Shackelford lets say you are a catholic entity and you have a hounding a housing using housing unit for priests. That would mean its not open to women. Can you sue them for not having women priests . People will try. I know you are hypothetical. I want to shift back to what we were talking about. The point of these people running their businesses, bakers, florists, in every single case, they served all people. They did not turn people away. They just could not endorse every message. I really think that we should all want that. For instance, i cannot imagine people would disagree, but can the government really punish a black baker because he will not bake a cake for a klan rally . I do not think anybody would want to force them to participate in something that they disagree with. I think there is a difference between i will not serve you and i cannot endorse every message that you are asking me to participate in. I think that is a huge difference and it is really dangerous that we have the government coming in saying, you will express this message or i will destroy your business and maybe your life. That is a serious thing. That is why we have the First Amendment because people get offended, people do not like what people say or do, and it might even be really offensive or inappropriate what they are saying or doing, but they are still protected because we want to let people have different beliefs. To be in minorities and not destroy them. I think a better approach is, lets not do business there. I do not want to go there. That is better than saying, i want the government to come in and crush my opponent because they do not believe like i believe. Mr. Clark there is a difference between refusing to bake a cake for anyone espousing racist or other objectionable points of view than there is to say, i will make a wedding cake for some people, but not for some others. There is a significant difference there and that is what the antiDiscrimination Laws are intending to get at. It is not just exclusion. It is not just saying i will not bake a wedding cake for anyone. It is being selective and treating people unequally, making them run some kind of gauntlet of humiliation, going from vendor to vendor to find out who will serve them. Dr. Brooks thistlethwaite we are almost out of time on this one. I wanted to raise one question that has come up, relative to prayer before congress. I am a pastor. I have done more public prayer in the 40 years of my ministry than i would guess anyone in this room. I have done so many public laid end to if end, they could compete in a triple bypass from denver to vail. A lot of public prayer. It is in the cross decision that prayer before congress is described as benign. It is a synonym for innocuous. It does not mean anything. For me as a pastor, what kind of prayer is that . What are you going to do, say bow our heads to whom it may concern . You are allowing prayer by taking everything that is prayerful out of it, which is powerful, specific, addressed, but you only allow it when you say it is benign. Number one, i am not sure it is benign. I testified before the Judiciary Committee and senator Jeff Sessions took me up on it whether there should be prayer before congress. I think Congress Needs to be prayed for. I just do not want benign prayer to be so we will say religion performance in this setting by taking everything that is meaningful and transformative out of it. Pres. Shackelford i do not believe that prayer is benign, ever. I would have to read the exact sentence. Prayer is powerful, but i do not think that there is any doubt that if you are trying to do with the constitution does, that the founders thought there was nothing that was a violation of the establishment clause to open their meetings with prayer. When they were breaking up at the beginning, there is a famous three hour prayer that brought them back together. Dr. Brooks thistlethwaite a lot of them were deas and thought it was pointless to pray anyways. Pres. Shackelford they believed in prayer, but they found no problem in paying a chaplain. That says that people were trying to misinterpret the establishment because to push out religious practices. Dr. Brooks thistlethwaite do you have anything you would like to weigh in on prayer . Mr. Clark just that these debates are not new. Madison actually opposed congressional chaplains. Jefferson refused to pronounce days of thanksgiving because he thought that was to close a relationship between government and religion. These debates are not new. I do not see them ending anytime soon. It is part of this country to have the discussion about where religious freedom actually extends in this country. Dr. Brooks thistlethwaite i will turn this over to you to walk around and direct your questions. Or test a question of both panels panelists. Two things. Sir, at one point you said something referring to it as if it were wrong, saying i am paraphrasing because i do not remember the exact words, but it was something about i would the gentleman who owns it does not have the right not to honor a gay wedding. Can you tell me where that comes from . That i do not have the right to samesex honor a marriage . Pres. Shackelford when should there be a religious exemption from an antidiscrimination law or from any Governmental Law . My point of view is that there should not be a religious exemption if governmental interest is compelling and the means of the law has little. Mpact on the believer in my mind, it passes that test. By requiring in the commercial sphere to provide goods and services to all on a equal basis, it is not overcome by that individuals religious beliefs. By doing that, as compelled by the law to do it, everyone can understand that they are not personally endorsing the use to which their products, goods and services are being put to. I live in colorado and i have followed that case. I am sure you are aware that the Supreme Court dropped the case and it ended up in the bakers favor. After that happened, the state of colorado decided to sue him again and after that went on for a few more months, unfortunately , he had probono representation. Excuse me, can you ask a question . My question is, that was dropped, but now the woman who brought the case to start with is bringing it up again. What right does she have to haunt this man that way and ruin his life . Where does it say that she has that right . Mr. Clark they threw out the judgment against the baker because they found that the adjudicators on the Colorado Civil Rights Commission did not act in a neutral way and sufficiently respect the religious beliefs being articulated. That did not mean that they were ruling that there was a religious exemption to the law in colorado, so that is why it was possible for the state of colorado, using a neutral and religiously respectful adjudicator to revisit the issue. I live in texas and what i saw is a shield in terms of freedom of religion has been weaponized in cases where they are using it to basically discriminate. Where would you draw the line . Could you own a hotel that would not rent rooms to gay couples . Where would you say this is a discriminatory case rather than someones expressing freedom of religion . I think in all of these cases and let me explain the difference, the big difference between the things you are describing whether it is Jack Phillips or all the other ones, the photographers, bakers, etc. They all serve those gay couples and many of them love those couples. Its just when it got to them participating in a wedding, which tends to be sacred, they could not participate in a ceremony or expression that violated what they believed, so those are very different. The reason you are seeing all those cases is the same, it is the same christian belief. These are people that dont believe in excluding people, they dont believe in treating people badly. But they cant endorse every message that people want them to endorse and when it comes to marriage, that is very sacred , biblical there is a picture of christ in the church they take seriously. And not everybody has this belief, but they cannot participate in that between a man and a man or a woman and a woman. To them, it violates a scriptural belief. They would be facilitating something they think is wrong, so i think those are huge differences and you never see of these cases where they refuse to serve these people. It is about whether they can participate or spread the message that they have a they cannot express. I know you addressed your question, i didnt know if you want to weigh in. He saved a chaplain and congress does not violate the establishment clause . As a matter of the way it is worded historically, there have been many chaplains from many different religions, but with what if the denomination that was the only denomination that was allowed to speak . Would that violate the establishment clause . Now, i dont think so. Again, the founders, when they picked the chaplain, if you have got someone who is excluding or acting incorrectly, they can change it. They can pick the chaplain who does the job of the best and serves the needs of congress. The chaplain has been many different denominations, i dont think it is any business of the court to get involved in say we dont like the chaplain you picked. There is no clause violation. So you think of congress were to say we are going to pay a chaplain of one of only the old line christian denominations and we will not take any chaplains at all, that would be fine . That could change two years later when theres a new congress. I think the courts would stay out of the picking of the chaplain. I think they would be very comfortable trying to tell which congress which chaplain they could pick. I think it would be wrong to limited to one denomination and i think the country would react to that and probably replace people that were engaged in that type of conduct, but i doubt the courts would involve themselves in taking a chaplain. I think they would provide freedom for them to do that and in all kinds of quirky ways. Theres a famous opinion by Justice Scalia where he talks about why congress does things and it is very funny and very true. Maybe he did it because of a religious motivation. Maybe he voted this way because he was mad at one of the other legislators. Maybe he did it because he was in a fight with his wife and he is voting this way to make her angry. And you go down all these congressional motivations and he says maybe it was a combination of all of these things. I think getting into what congress is trying to do would be an impossible undertaking because of the different reasons, rationales and real motivations. We dont have time for each of you to have a debate, so we will try to get one question from you and we will come back. We are not trying to discriminate and want to get to as many questions as we can. This is a question for both kelly and don. As christians, we dont all agree about samesex marriage. What i have found troubling command this is a question for you, if the courts ruled that a christian can say i cant participate, where is the line if a hindu couple, muslim couple, jewish couple, no religion you talked about women with many children. Would it be discriminatory under this law to say we are a bakery who will bake wedding cakes for white, conservative protestant christians. Im looking at that down the road. Where is the line to remove speech and a discriminatory practice . First, lets just take the race issue on. Race is a different issue. We fought a civil war over race, there is a 13th amendment that we passed, a constitutional amendment that specifically Congress Power to create to end all vestiges of slavery. Congress did that. They created a Civil Rights Act that outlawed racial discrimination, so i think that is very different. I did not ask a question about race. Well, it was on the list, white. The others, i think it is the difference between saying im not serving you and a particular religious belief of what a marriage or wedding is, i think it is not a huge number of people around the country that have the belief of not serving. I dont think there is any problem, probably, finding a florist or wedding cake you can buy. But there are people who have those beliefs. My point is, this is a big country. Theres no reason to try to find the people with different beliefs and put the screws on them. It is unnecessary and [applause] our country has a history of wanting people with minority beliefs to be left alone. If you are the quakers, one of the reasons you came here is so you could be quakers and not have the government tell you what to do or believe, so i think we go to extraordinary conflicts avoid those and i think we should continue to do that. I think the religion clause, free speech, they allow you to do things that offend people and make people mad. We try to let that happen because we want people to be different and have different beliefs or actions or expressions. Just briefly, i dont believe it is a question of the government putting the screws to religious believers. This is the government advancing a compelling interest that has been described to the supreme order andhe highest that is to not discriminate against people. [applause] they are pretty evenly divided. I would love to move this discussion and get your opinion of when the public good, the welfare of the public as a whole is more important or less important than their religious beliefs and specifically, im thinking about the Measles Outbreak throughout the country which was a Public Health crisis. Could you please address that . Weve had these cases. Let me kind of restate the issue. I think the question is, when does religious freedom fall to major Public Health issues . There have been a lot of actual cases on this. You might have christian scientists, different people with different beliefs and one of the things that donna and i agree upon is we were talking about the smith decision, which is a horrible Supreme Court decision. It really did almost eradicate the free exercise clause. It is very difficult to bring a free exercise claim because of this decision. But what smith took away was the compelling interest test and what that test is but i believe should apply to the free exercise of religion if you have the fundamental rights like free speech and free exercise of religion, you can exercise those rights and the burden is on the government, if they are going to interfere with that religious exercise, the burden is on the government to come forward and say no, we are going to infringe upon your rights because we have a compelling governmental interest that requires us to override religion in this case and we are doing get in the least restrictive way that we can. That puts all the burden on the government, but allows the government to come in when there are major things like health, safety, compelling governmental interest. That is the way it should be handled, not the smith decision. Says if the law is neutral and not email your religion, you dont have any religious freedom implications. Under the smith approach, you cant have alcohol to minors, the police could begin going into catholic churches and arresting the priest. When the priest says exercise of religion, they say you dont have any religious freedom protection. Smith is bad, but i think if we took the proper approach, i think health and safety type things, it is going to override. What if someone said i want to sacrifice my children. You have religious freedom, but theres a compelling interest. That is the way it is supposed to work. As kelly said, that would be our preferred standard. It is not the current jurisprudence in this area, but it is the direction i think both of us would like to see. I think its going to happen, by the way. We had a case that went to the Supreme Court and they issued a signal where they sent this back down to the District Court and we did not even bring this up, they said, by the way your first claim to us was a freespeech claim, not a free exercise claim and said maybe that is because of the smith decision. , we have not been asked to review that decision yet. I think it is coming and i think we might be seeing some changes. As a grandmother, im glad to hear it. The last question because we have to move to the final segment. It just so happens you talked about what i was going to ask about. My question for you, on the government interest side, is it in the governments interest to make a decision, so both of you see a way because everyone is probably fearful of a repressive regime. The constitution we have and all live by, what happens to prevent anything from happening and going forward, how does the government ever really decide . Does the governments best interest take precedent over the constitution and how does that manage their balance in making decisions . If an oppressive government ever takes control their best interest is not the peoples best interest and how does that take shape. My short answer is that is why we have the court system. The court adjudicates whether or not the government is articulated and pursuing an interest that is compelling. It is the courts that decide whether they are doing that in the least restrictive means. Compelling should mean really compelling, meaning you cant not do it. A lot of times, the government, everything is compelling to them and it is not true. If they have a compelling interest and you find their interest is not being protected, you have shown it is not really compelling, so you have to litigate and make sure because the government will always try to justify. Religion covers all the major issues of life. How did we get here . What happens after we die . It is crucial and i believe that god is reaching out to everyone and i believe you have the freedom and should have the freedom to reach back and live our lives without the government interfering in us living out our faith and when the government is allowed to begin to get into that process of interfering, it is not only dangerous for what it does to us and our freedom, it is a sign that you are about to lose all of your Political Freedoms and Everything Else. And i dont know how many of you have seen this movie hacksaw rage. Movie hacksaw ridge. It is a story of a guy who served in our military in world war ii. He was a seven day adventist and had very different beliefs. He did not believe and he would not carry a weapon. They did not like that. They billet him and did horrible things to and even tried to courtmartial. But he won his courtmartial because we have religious freedom in this country, and thank god we have religious freedom. He come as a medic without a weapon, saved 75 mens lives who would have never been saved because he was this unique religious person who so valued elsethat when everybody had left the field and there were all these Soldiers Left for dead, he went on a Suicide Mission back there to drag, one by one, those people off to save their lives, being shot at. He was behind enemy lines doing this and every single time he said before he went back, god, give me one more. Just one more. That is why we protect people who have different beliefs. It is a blessing to this country that we have people with different beliefs, may be very minority believes. And sometimes we dont know why we should protect them. Those fellow soldiers treated him horribly. They had to apologize later. They did not understand that in being unique and different was a great thing, but that is what our country is all about. This is why i believe the United States of america is the greatest country on the face of the earth because of our allegiance, our dedication to religious freedom and freedom of conscience. I just say we should do everything in our power to make sure that never changes and that is what is so great about this country. Thank you for in part of this for being a part of this discussion and god bless you. [applause] i also want to thank bill symposium for inviting me. It is an important venue for Critical Thinking and im appreciative of it sort and asking to be part of it. Appreciate its work and am honored to be part of it. Some of the concerns raised about threats i believe are unfounded. In fact, some of the concerns devolved to this. The state is targeting religious objectors because they discriminate against samesex couples. These objectors are discriminating against samesex couples because of their religious beliefs, therefore the state is targeting religious objectors for their religious beliefs. But this is flawed as it is dangerous, that the conduct of those seeking exemptions come from sincerely felt alleged beliefs does not apply that the states desire to regulate that conduct springs to empathy to those beliefs. Public accommodation laws like colorado promote religious liberty by protecting individuals from discrimination on account of their religion. Such laws promote Human Dignity , which itself is a religious value, by ensuring all individuals can access the commercial marketplace on an equal basis. By advancing these public interests, public accommodation laws protect the pluralism that is vital to american society. And so while i am fiercely supportive of religious freedom, i refuse the notion of equal rights accommodation resulting can be explained or justified by such freedom. With respect to the establishment clause which the Court Conservatives and liberals seem to neglect in recent years is the government use of symbols degrades and exploits religion itself. The governments generic, unilateral use of a cross to honor our wardead reflects the erroneous assumption that our military is composed entirely of christians or the equally erroneous assumption that the most sacred symbol of christianity somehow honors nonchristians as well. The state violates its obligation to remain neutral and when it spends stories attempting to secularize the cross. The cross is not a secular symbol in the United States nor the court can make it so. While i know we are here today to reflect on the jurisprudence, i cannot help in closing to ride myself if no one else, of some theology. When reflecting on treating on the propriety of exempting oneself of treating others equally, im reminded of jesuss second commandant, love a neighbor as thyself. Jesus stated that all the laws in part hang on this commandment , and indeed this ethic of reciprocity can be found in most of the major religions throughout the world. While reflecting on the governmentsponsored symbols such as a 40 football foot tall latin cross, i am reminded of the sermon on the mount and when you pray, do not be like hypocrites because they love to pray on the on street corners and be seen by others, but when you pray, go into your room and pray to your father who is unseen. Then your father will reward you. I also cant help but reflect on the story of the doctor and the engineer and lawyer who were arguing over which of their professions could be traced back further in time. The doctor says medicines obviously have the greatest legacy, i turned less to i turned to know Less Authority than the bible and in the very first chapter, it is set god put adam to sleep, extracted a red red, anesthesia, surgery. Obviously, medicine had the oldest calling. The engineer disagreed. I, too, cite the bible is my authority. For before the story of adam needs, it is written that the chaos, god created the heavens and the earth, the greatest engineering marvel of all time. The lawyer interrupted, you have proven my point that lawyers are the oldest. Who do you think created all the chaos to begin with . [laughter] i hope we have not created too much chaos in sharing our views on religious freedom and i thank you for being so patient and attentive in what we had to share. [applause] thank you for participating in this. This event demonstrates the civility that i think the First Amendment has had a lot to do with securing for this nation. Endure. Or [applause] cspans washington journal. Live every day with news and policy issues that impact you. Morning, andnesday author talks about efforts to fix the u. S. Health care system. Be sure to watch washington journal and be sure to watch authors week starting at 8 a. M. Here is a look at some of our featured programming on cspan. Day, View White House declarations with melania trump. Plus, a look back at previous declarations by former first ladys. Ladies. And a discussion about Global Technology issues at the manhattan institute. And john miller on the history of journalism and fake news at the liberty form. Forum. Joint Economic Committee hearing on the high cost of raising a family. Time, a litigator talks about occupational licensing arms. Requirements. Watch on cspan. , book tv is onek cspan two every day. At 8 30 p. M. , in with naomi klein. Thursday, at 8 p. M. Eastern, a discussion about president s. Friday, at 8 p. M. , a book catch and kill. 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