Now, i have taught religion in america for more than 35 years. And i believe that the First Amendment has played a vital role in the vitality of this nation. And i shall read it for you. Congress shall make 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. The establishment of religion and freedom of exercise comes first, which is 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 whooping it up, singing songs, and they didnt like having to support these basically european style formal religion, everybody sitting like this. Theres a liturgy. 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 40, 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. Dear 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 , which tend to restore to men all his natural rights, convinced he has no natural right in opposition to his social duties. Now the 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 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. The refusal to make a cake for a gay couples wedding reception, citing that marriage is only a union between man and a woman. Philip said he believed 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 governments display of across 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 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. You want the freedom to live out that faith. 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 symbols, and within months, we all lost our Political Freedoms. A number of these people handed me checks saying, i want my political freedom. 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 paint 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 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 i always refer to it as the Bladensburg 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 Humanist 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, 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 in district court. In the court of appeals, the threejudge panel ruled 31 this was unconstitutional under the establishment clause. One of the statements in the oral argument by one of the judges was, why dont we just cut the arms off the cross . That way it will not offend anybody. We do at that point we might be in trouble that case. The 21 decision was against us and the ruling was this was going to have to be moved or destroyed. It was moved it would have been destroyed. It is not a shape that can be removed. So 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 bladensburg 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 into 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 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 reason we are here is not because of what the constitution says, but because of the 50yearold lemon case, aptly named, then 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, which means that if somebody walks through community and sees a religious symbol and private are any and feels they outsider, that makes it a violation of the establishment because. This is not anywhere near what the establishment clause says. The establishment because says they are talking about an , establishment like a National Church, picking one denomination, forcing people to support that. We argued in the Supreme Court not only should you uphold this, what 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 not what our founders intended or what the constitution says. The decision of the Supreme Court came down just two months ago, and are very pleased to say that the veterans peace cross was upheld. It was a 72 decision. Like most things in the Supreme Court, it was not a real decision, because there were 72 different decisions handed down. In my view, the lemon case and the lemon test being used is dead. Many commentators are saying that. In the case, 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 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. 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 cakes, 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 expressing something that i dont believe in. They went to the Colorado Civil Rights Commission, and they found Jack Phillips in violation of their laws. They said this is discrimination. And they told him he could not do wedding cakes anymore if he was going to take this approach. He had to let go of half of his employees. He was also ordered to go to a government Reeducation Program about his beliefs 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 state 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. They 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 handled 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 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 differently treated. If youre on one side of the issue you are treated one way, and on the other side of the issue you are treated another way. This is discrimination. Both cases 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 freedom is a foundational importance in our country. And it should come with no surprise that i believe religious exemptions from certain laws have a legitimate place in our system of 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 clergy and congretants right 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 frequently used in Wedding Services may decline to provide 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. Enter appropriate leave 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 a 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 incidental effact of suppressing religious exercise. Laws ensuring equal access to public accommodation and prohibiting discrimination are neutral because they are not specifically enacted in response to and with the purpose of frustrating anyones religious exercise. 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, religious objectors cannot show that the antidiscrimination laws violate their free exercise rights under the First Amendment. 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 intentioned with the constitutional text, the original understanding, and the moral imperative to detect 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 religious exemption from any law unless the government can demonstrate it is furthering a compelling interest with impact to the religious believer. I find the antidiscrimination laws passed this more stringent test. The states interest in discouraging discrimination in providing commercial services and goods is not just important, it is compelling. There is no less restrictive means by which the government can achieve its compelling interest 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 denial of service by a business ostensibly open to the general public. The court has the cleared by eliminating discrimination and ensuring equal Access Service compelling state interest of the highest order. Any argument that the baker in 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 thus 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 minimizing to zero, the number of establishments that do. The conduct at issue in classes cases like Masterpiece Cake shop, making a cake for sale, is commercial activity for profit. Where the claim for an extension an exemption involves forprofit conduct in the commercial space, the states interest to protect 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 purpose to which those goods and services are put. The effect nondiscrimination laws have on the Business 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 searches and search caesars churches and seizure, all have defined foundries. Boundaries. Those 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. We cannot let bakers refuse to bake a cake for an interracial couple on religious grounds. We cannot allow people to burn down other peoples churches because the religion compels him to do so. There are contexts in which religious exemption still 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 and 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 claims. Even as society deeply respectful of religious rites rights, and willing to accommodate a fair number of such claims still needs to draw a line somewhere. Religious views should never excuse failure to an here to laws advancing government interest where nontrivial harm to others will occur. With respect to establishment clause to respondents and the Bladensburg 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 established religiously expressive monuments, symbols and practices, is quite different than erecting or adopting new ones. He argued that the cross took on a secular meaning when used in world war i in particular. Justice alito concluded that the cross is undoubtedly a christian symbol, but it should not blind us to Everything Else that the Bladensburg Cross has come to represent. For some, the cross is a symbolic resting place for those who never returned home. 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 these reasons, the cross does not defend the constitution. There be something to be said removinghe fact that an old religious monument bears a certain negative meaning. But a concern i have was that government use of religious symbols degrades and exploits religion itself. The secular meanings offered in arguments presented and opinions issued by the court in efforts to minimize its religious meaning are offensive to many christians. The cross symbolizes the central christian story about christs death and resurrection. For christians, it symbolizes gods gift of jesus, who died on the cross and rose from the death of offering the promise of , eternal life. ,he secondary meaning of across to honor the christian dead is , based on this promise of eternal life. It is not a secular meaning of the cross, but an application of the religious meaning. Indeed, religious faithful ought to be concerned about the implications of the court saying that one reason the cross can continue to exist is that in context, it is not so religious after all. Yes, the court has ruled that this cross may stand, but at what cost to christianity . Is this the definition of a pyrricer victory a victory . Moreover, a problem of the monument from an establishment cross point of view is not just the cross but the plaque at the base that read this memorial cross dedicated to the heroes of prince georges, maryland. Who lost their lives and the great war for the liberty of the world. This violates the fundamental principle that religion should not be used to bolster the states secular purpose. Making a latin cross a war memorial does not make the cross secular. It makes the war memorial sectarian. The proper and constitutional relationship between the government and religion in my view is the strict separation and maintenance of separate domains inspired by roger jamesms, articulated in madisons memorial and remonstrance in the long line of Supreme Court decisions. Summary, i am opposed to constitutional right to a religious exemption from a law where the law advance a compelling interest and nontrivial harm is imposed on others. I believe we best protect gross androm the divisive influence of government interference by keeping government out of religious matters. Thank you. [applause] clearly, we are off and running. Justice alitos opinion suggests, is mr. Clark 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. There are two points. Number one, im going to read from alitos 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 over now. And the argument is now, what did they mean by longstanding . One of the argument made by Justice Gorsuch i think the is court was saying that the , type of practices that are practices, civil, etc. That , are longstanding, for instance, one of the practices is prayer to open up government meetings. The founder said that. They paid for a chaplain out of the federal treasury and they thought that was not a violation of the establishment clause. For if your local city, first time next week, said were going to open our meetings in prayer. With that not be longstanding and therefore not be protected . I think it would be protected because it is the type of practice, symbol, etc. That has been here since beginning. Of the country and therefore that would be completely consistent with what the founders had in mind with the establishment clause. Dr. Thistlewaite but, and perhaps you care to talk with each other, don has just argued that this is actually insulting you aretianity because sitting a giant cross, the christianityl of 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, don . Mr. Clark that is one of my concerns. While the court has not held that this presumption exists 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. And so, i do not think the blandins berg bladen berg cross case should be read as a green light that monument such as that 40 foot tall latin cross can be established by government in the country. That the context in which the i also thinkthat the context in which the 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 for 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. Mr. Shackleford let me address two of those points. First 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. Cross cameensburg down because it is religious, i do not see any way he would have to go to arlington to tear down those freestanding crosses. The other thing about a new memorial, new religious this , idea that you can keep all the old but cannot add anything new, that would discriminate against minority religions because most of what we have is typically christian, therefore it would be a way to keep from ever having any other monuments. That might have religious if you symbols. For example if you are in , pittsburgh, what if they 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 there is any establishment clause violation by doing that to respect and honor those who died. So i do not think this religion this division between old and new a something we should follow. I think we are religious people with a religious heritage and with religious and secular symbols and i do not think we should sort of take an approach that we do not allow religious symbols. I think we can have both and it is ok. And i think we do. I think there is a much no way to avoid this. Owing to the Supreme Court, there is moses holding the 10 commandments. Go into the Jefferson Memorial and you will see him talking about our liberty coming from god. Youre going to see this all over the place. That is just a part of our history, our heritage. As long as there is religious freedom for everybody and nobody is having to support something that they disagree with then i , think it is fine. I do not think that we need to scrub the divine or religious comments from our monuments and memorials across the country. Dr. Thistlewaite both of you then it seems to me that in your example, it is constitutionally permissible for pittsburgh to erect a religious memorial in effect establishing a religion. I do not think that establishes a religion. The founders were talking about establishing a national religion. It was an establishment of a religion that they were concerned about. Just because the government does something and it has a religious symbol does not make it a violation of the establishment clause. We were after coercion. They wanted freedom. They wanted people to be able to be freed to live out their faith and not be forced, coerced in any way, to support something that they did not believe. Dr. Thistlewaite ok, so i am a taxpayer in pittsburgh. And i pay for the upkeep of this memorial. Mr. Clark do you have any , comments on pittsburgh erecting a religious monument . Mr. Clark if it is related to a single religion or denomination, then 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 these establishment clause cases. So with respect to moses and the 10 commandments appearing in the frieze in the Supreme Court, it is in the context of being next to hammurabi and the hammurabi code. In the Supreme Court context, moses and the 10 commandments part of examples of numerous types of lawgivers does not establish religion, but to single out a particular faith and have the government the endorsing that i think is violating the clause. Dr. Thistlewaite im going to keep faith with our schedule and move on to the questions. It is my job to be timekeeper, so i would like to move on to the masterpiece decision. How will these, as described in the Supreme Court decision, how will these of sincere religious beliefs, not result in a communitywide stigma . Lgbt q people are subjected to indignities when they go on. They are excluded from what is a relatively normal, get a cake to honor my wedding. How can the Government Support people being in a Community Wide stigma . Which it will result in. You cant get cakes everywhere. Do not knoword i if youre talking about be on masterpiece. Masterpiece does not answer the question youre talking about. 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 before them they are that supposed to be adjudicating. I will give you example of 10 must exactly like masterpiece. It is one of our cases a case , out of oregon. A wonderful family. They have five children and melissa started baking goods. People liked it and it grew. They eventually builds 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. Then they said, we want you to do a cake for our wedding. Alyssa, the way she did things, her wedding cakes were custom, therefore she had to make them from scratch and she was very serious about what she believed about marriage and the sacredness of marriage and her biblical concepts. She always interviewed the clients and put something biblical in there. They said, 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. Their business was bankrupt. That they were going to pass to their children. They were told not to speak publicly about their views about marriage because it might cause mental anguish to the couple. And this is what i am connecting to what you just said with the masterpiece case. The commissioner who made this ruling, before they ever had a 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. They said they are despicable beliefs. That is not a neutral tribunal. That is what masterpiece is talking about. We need neutral tribunals, not that are antireligious. Dr. Brooks thistlethwaite you are nodding your head. Mr. Clark we can find Common Ground on this. 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 where any exemptions from antidiscrimination laws, and all laws really, is drawn with respect to accommodating religious exercise, free exercise beliefs. I mean, one case i would be interested in teasing this out a little bit with you, kelly. My understanding is first liberty has a case regular has a case not representing a retired lutheran 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 said, you cannot do that. He then wanted to conduct that bible study inside his own apartment and the apartment complex said, you cannot do that either. My understanding is, with first libertys support, you file 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. So i guess the question i would pose to you, using that as a jumping off point, at the apartment complex was owned by an individual and that individual said, 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 facilities violates my religious beliefs. Would you say that is an exception to the fair housing antidiscrimination laws . Flipping in effect be sides and now be representing the owner of the apartment complex . Pres. Shackelford the religious owner of the entity could conduct in accordance with their faith. People know that when they come in, but what you cannot do is be a corporation or a government we had had government and private Senior Citizen facilities saying you can use the common room for everything but reading the bible. In those cases, we have defended those people and their rights to not be discriminated against in that way. That is a violation of federal and state law. But if someone wanted to do a religious housing unit, i think there are a lot of those that exist. They are run by churches and denominations and they have a right to run their housing in accordance with their biblical beliefs, and to 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 my apartment that i am 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 different to not renting to africanamericans because it is against my religious beliefs . Im not going to rent to women because it is against my religious beliefs. Im not going to rent to muslims because it is against my religious beliefs. Shackelford i thought you said someones apartment. Clark im talking about the owner leasing a apartment. Pres. Shackelford lets say you are a catholic entity and you are only renting to priest. You are not allowing women. Can you sue the Catholic Church for not having women priests . You cannot. People will try. I know you are hypothetical. I want to make sure we shipped back to what we were talking about. The point with regard to these peoples running their bakers or florists or whatever else in every single case, Jack Phillips included, they served all people. They did not turn people away. They just could not endorse every message. And 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 when we have the government coming in saying, you will express this message or i will destroy this business, maybe your life. That is why we have the First Amendment because people get offended and they do not like what people say or do. It might be really offensive or inappropriate what they are doing or saying, but they are still protected because we want to have people have different beliefs. I think a minor 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 that i believe. Mr. Clark there is a difference between refusing to bake a cake for anyone espousing racist or other objectionable points of view then 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 getting at. It is not just exclusion. 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. Thistlethwaite we are almost dr. 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 found it 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 prayers that they could compete in the triple bypass from denver to vail. It is a hundred mile hike. A lot of public prayer. In the opinion this is the relative to the Bladensburg Cross decision. It is in the cross decision that prayer before congress is described as nine. As benign. That is a synonym for innocuous. It does not mean anything. For me as a pastor, what kind of prayer is that . What are we 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 and senatormmittee Jeff Sessions took me up on whether there should be prayer before congress. I think Congress Needs to be prayed for. I replied to senator sessions, i just do not want benign prayer to be so we will say religion save religion performance in these settings by taking everything that to me as a christian is powerful, meaningful, and transformative out of it. Pres. Shackelford i do not agree that prayer is benign, ever. I dont know. I would have to read the exact sentence. Dr. Thistle flight thistlethweight that is a quote. Pres. Shackelford 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. Thistlethwaite that is the way they did it. Andt of them were deists 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. Establishment clause to push out religious practices that were part of the religious establishment clause. Dr. Thistlethwaite do you have anything you would like to weigh in on prayer . Mr. Clark just that these debates are not new. They are not new to this nation. Madison actually opposed congressional chaplains. Jefferson refused to pronounce days of thanksgiving because he thought that was to close a close aose too relationship between government and religion. These debates are not new. I do not foresee them ending anytime soon. It is part of this country to part of the vibrance of this country to have the discussion about where religious freedom actually extends in this country. Dr. Thistlethwaite and continuing the tradition of doing this in a civil fashion. I will turn this over to you to walk around and direct your questions. Or ask a question of both panelists. Two things. About the masterpiece bakeshop thing, 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 or the gentleman who owns it does not have the right not to honor a gay wedding. A one sex marriage. Can you please tell me where that comes from . That i do not have the right to 16 a onesex 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 it is compelling if the governmental interest is compelling and the means of the means the law is using to advance that compelling interest has the least impact of all on the religious believer. In my mind, antidiscrimination laws pass that test. By requiring a provider of goods and services in the commercial sphere to provide goods and services to all on a equal basis, it is not overcome by that individuals religious belief. 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 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 that even though they worded it kind of funny, 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. After that went on for a few more months, unfortunately he has pronfortunately he bono representation excuse me, maam. Could 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 what the Supreme Court did is, 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 lay and 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 the public accommodation law in colorado. So that is why it was possible for the state of colorado, using mutual and religiously neutral and religiously respectful adjudicators 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. I guess for mr. Shackelford, where would you draw the line . Could you own a hotel that would not rent rooms to gay couples . Apartment complex . Restaurant . Where would you say it is a discriminatory case rather than somebodys Free Expression of religion . Shackelford i think the big difference in all of these cases let me explain a different, and then i will tell you the reason. Whether it is Jack Phillips or 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 to gay couples and many of them loved to couples. Love those gay couples. If you look at the washington case with the flowers it is just when it got to them participating in a wedding, which tends to be sacred to people in what they believe, they could not participate in a ceremony, a celebration, and expression that violated what they believe. So those are very different. The reason you are seeing all these cases, it is the same it is the same christian believe in these people. These are people that dont believe in excluding people, dont believe in excluding in treating people badly. They want to love people. But they cant endorse every message that people want them to endorse. And when it comes to marriage, that is very sacred, very biblical. There is a picture of christ in the church that they take very seriously. Not everybody has this belief, but they believe they cannot participate in that between a man and a man or a woman and a woman. To them, it violates their scriptural beliefs and they would be facilitating something think is wrong. So i think those are huge differences and you never see one 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 conviction they cannot express. I know you addressed your question to kelly, i dont know didnt know if you want to weigh in. Mr. Shackleton, you say the chaplaincy of congress does not violate the establishment clause. As a matter of just the way it has worked historically, there have been many chaplains from many different religions, but , whatever the denomination of the chaplain, the first in congress, that was the only denomination that was allowed to speak . Would that violate the establishment clause . Dont thinklford i so. I think you had a presbyterian, the first one, for a long time. Again, the founders, when they picked the chaplain, if you have ss if you have someone who is acting incorrectly, they can change it. If they feel the chaplain has been many different denominations, i dont think it is any business of the court to get involved and say we dont like the chaplain you picked. There is no violation of the establishment clause. So you think of congress were to say we are going to pay a chaplain of only christian denominations and we will not a not pay any other chaplains at all, that would be fine . Pres. Shackelford that could change two years later when theres a new congress. I think the courts would stay out of taking the chaplain. I think they would be very comfortable saying which chaplain they could pick. I think it would be wrong to limit it 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 what congress does things about why congress does things. And it is very funny, but it is very true. He says 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 to 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 and get answers from them. If we run out of questions we , will come back. Otherwise, you can speak to them after. We are not trying to discriminate and want to get to as many questions as we can. Go ahead, please. This is a question for both kelly and don. As christians we dont all agree on samesex marriage, but a but what i have found troubling, and this is the question for you, is if the courts ruled that a christian can say i cant participate, the messaging for a samesex couple, where is the line if a hindu couple, muslim couple, jewish couple, no religious. You talked about the woman 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, period . Im looking at that down the road. Where is the line between freedom of speech and a discriminatory practice . Shackelford first, lets just take the race issue on. Race is a different issue. We fought a civil war over race, there is a constitutional amendment that Gave Congress specific power to create legislation to and all vestiges of slavery. Congress did that. They created a Civil Rights Act that outlawed racial discrimination. So i think that is very different from other issues that we bring up constitutionally, and how we have addressed those things. White,one of your list, on the list. The others, i think it is the difference between saying im not serving you, and a particular religious belief in 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 a wedding cake that you can buy. But there are people who have those beliefs. My point is, this is a big country. There is a lot of room. Theres no reason to try to find the people with different beliefs and put the screws on them. It is unnecessary. I think our country has a history [applause] pres. Shackelford 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 you have to do or believe. So i think we go to extraordinary lengths to try to avoid those conflicts, and i think we should continue to do that. And i think the religion clause, free speech, they allow you to do things that make people mad. But we try to let that happen because we want people to be able to be different, even in the minority, and have beliefs or actions or expression we find repugnant. Clark just briefly, i dont believe it is a question of the government putting the screws to religious believers. This is the government this is the government advancing a compelling interest that has been described to the Supreme Court as of the highest order, and that is to not discriminate against people. [applause] we 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 religious beliefs. And specifically, im thinking about the Measles Outbreak throughout the country which was a Public Health crisis. Could you please address that . Pres. Shackelford weve had these cases. Let me kind of restate the question. I think the question is, when does religious freedom fall to major Public Health issues . There has been a lot of actual cases on this. You might have christian scientists, different people with different beliefs and one who do not think they should provide doctors for their children when they are in serious situations. And the way one of the things that don and i agreed upon is smithe talked about the decision, a horrible Supreme Court decision of 30 years ago that almost did eradicate the free exercise clause. It is very difficult to bring a free exercise claim because of the smith decision. But what smith took away was the compelling interest test and the strict scrutiny test. What that test is, which i believe, and i think don believes 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 truly major things like health, safety, compelling governmental interest. That is the way it should be handled, not the smith decision. It says if the law is neutral and it not aiming at your religion, you do not have any religious freedom applications. That is a horrible for instance, under the smith approach, alcohol to minors statutes, you cant have alcohol to minors, the police could begin going into Catholic Churches and when the priest and arresting the priest. And when the priest says exercise of religion, they say statute. Neutral we were not just aiming at you, and therefore you dont have any religious freedom protection. Smith is bad. But i think if we took the proper approach, a compelling interest 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 there is compelling governmental interest that would override that. That is the way it is supposed to work with fundamental rights. Smith as kelly said, we agree that would be our preferred standard. It is not the current jurisprudence but it is the direction i think both of us would like to see. Think it islford i going to happen. We had a case that went to the Supreme Court and they issued a signal which the judges wrote in their denial of 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 that has caused so much damage to freedom of religion, but they said, we have not been asked to review it yet. I think it is coming and i think we might be seeing some changes. Rev. Thistlethwaite as a grandmother im glad to hear it. ,this will be the last question because we have to move to their final statements. It just so happened you talked about what i was going to ask about. It was part of the argument of is it in then, governments interest to make a decision, so both of you see a way because everyone is probably fearful of a repressive regime. If it ever comes and of the constitution we have and we live by, and it stands for something, what happens to prevent anything from happening from a repressive regime . Going forward how does the , government decide . Does it take precedent over the constitution and how does that balance decisions . Because if there is an oppressive government that takes control, their best interest cannot be in the peoples best interest. How does that take shape . Mr. Clark my short answer is that is why we have the court system. The court of judy yates 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. And compelling should mean really truly compelling, meaning you cant not do it. A lot of times, the government, they try to do Everything Everything is compelling to them, but it is not true. There are ways to show this. For instance if they have a , compelling interest and you find their interest is not being protected in these other ways, you have shown it is not really compelling. So you have to litigate and make sure because the government will always try to justify its infringement. Rev. Thistlethwaite i would like you to give your closing statement, then don. Mr. Shackelford religion covers all the major issues of life. I mean how did we get here . , what happens after we die . How do we live our life now . It is crucial. And i believe that god is reaching out to everyone. And i believe you have the freedom and it should have the freedom, we should all have the freedom to reach back and live our lives according to our faith 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 really dangerous for what it does to us and our freedom, but it is really a sign you are about to absorb your for lose alle about to your freedoms, Political Freedoms and Everything Else. And i do not know how many of you saw this movie hacksaw ridge. It is a story of a guy who served in our military in world war ii. He was a Seventh Day Adventist and had very different beliefs. He did not believe and he would not carry a weapon. They did not like that. And they bullied him, they did horrible things to him, and they even tried to courtmartial him. But he won his courtmartial because we have religious freedom in this country. And thank god we have religious freedom. Because as a medic without a weapon, he saved 75 mens lives , who would have never been saved because he was this unique , religious person who so valued life that when everybody else had left the field and there were all these Soldiers Left for dead, he went on a suicide oneion back there to drag 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 beliefs, maybe minority beliefs. And sometimes we dont know why we should protect them. Those fellow soldiers treated him horribly. They had to apologize later. They didnt understand that him 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. You know 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] mr. Clark i also want to say thank you for inviting me. This is an important venue for Critical Thinking and im appreciate it to work and i am honored to be part of it. Some of the concerns raised about threats to this freedom i believe are unfounded. In fact, some of the concerns devolve 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. As it isis flawed dangerous that the conduct of exemptionsking springs from religious believes does not imply that the states desire to regulate that conduct springs to those beliefs. Public accommodation laws like in colorado protect individuals from discrimination on account of their religion. Such laws promote Human Dignity , which is itself a religious value by ensuring all , individuals can access the commercial marketplace on an equal basis. By advancing these compelling interests, public accommodation laws like those in colorado protect the pluralism that exists in society. While i am fiercely supportive of religious freedom, i refuse notion of equal rights accommodation resulting in societal vision 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 and religion itself. Degrades and exploits religion itself. The use of the cross to honor our nations war dead reflect either 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 sponsors the cross and when esperance stories meant to secularize the cross. It is not a secular symbol and neither the court can make it so. While i know we are here today to reflect on religious clause jurisprudence, i cannot help in closing to talk about some theology, at least that which resonates with me. When reflecting on the propriety of reflecting oneself in treating others equally im , reminded of jesuss second commandant, love a neighbor as thyself. Jesus stated that all the laws hang in part on this commandment, and indeed this ethic of reciprocity can be found in most of the major religions throughout the world. And when reflecting on the propriety of governmentsponsored religious symbols such as a 40 foot tall , latin cross, i am reminded of that portion of the sermon on mount and when you pray, do not be like hypocrites because they love to the on they love to pray on the street corners and to be seen by others. But when you pray, go into your room, close the door and pray to your father who is unseen. Then your father who sees what is done in secret will reward you. I cannot help but reflect on the story of the doctor and the engineer and a lawyer who were arguing over which of their professions could be traced back for the rest in time. The doctor said medicine has the greatest historical legacy. I turned to no less an authority than the bible. In the very first chapter it is written that god put adam to sleep, extracted a rib, obviously medicine had the oldest calling. The engineer disagreed. And he argued that engineering has a longer history. I also cite the bible as my authority, for before the story of adam and eve, it is written that in the chaos god created the heavens and the earth, the greatest engineering marvel of all time. Shirley engineering has the greatest historical legacy. The lawyer interrupted my good doctor and engineer, you have proven my point that lawyers are the oldest. Who do you think created all the chaos to begin with . [laughter] that we asi hope lawyers 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] rev. Thistlethwaite thank you for participating in this. This event demonstrates the stability that i think the first the stability that i think the First Amendment has had a lot to do with securing for this nation. May it endure. Thank you. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] cspans washington journal, live every day with news and policy issues that impact you. Coming up on thursday morning, as part of authors week, byron dorgan will join us to talk about challenges facing native americans today, from his new book the girl in the photograph. A it White House Correspondent will be on to talk about impeachment in campaign 2020. Be sure to watch washington journal live on thursday morning. Join the discussion. And watch authors week all this week starting at 8 00 a. M. Here is a look at some of our featured programming this holiday week. 545 p. M. , a joint Economic Committee hearing on the high cost of raising a family. Then at 9 10 p. M. , constitutional litigator Justin Pearson talks about occupational licensing requirements at the federal society. There are three types of constitutional visas you tend to see, the former slaves, their white allies, they would have their arms taken away, and they would have the right to be selfsufficient taken away, the right to be economically selfsufficient. You hear these stories of those being forced to go back and work for their former slave owners because of the occupational licensing laws preventing them from being able to be selfsufficient. Announcer watch this holiday week on cspan. Announcer university of washington history professor Margaret Ohara discusses her book, the remaking of america. It is a space race. You have what eisenhower labeled the militaryindustrial complex, that becomes the foundation for this entrepreneurial wheel of incredible creation and innovation and private wealth creation. And an industry that is considered the self, that bill itself on its own, that the government becomes almost invisible to many of the people who are in Silicon Valley who are the creators of these companies and technologies. Think they are the world. That is part of the magic, that it is a government out of sight. Announcer sunday night on q a. Ns christmas at the white house with Melania Trump receiving the White House Christmas tree, then a look at the decorations, followed by the president and first lady at the lighting of the National Christmas tree