Have we lost free speech and freedom of religion in America? I speak with expert Mary Rice Hasson about current legal cases and bills before Congress. Some of these hold hope for our cherished first amendment rights, and some present dangers to the protection of our liberties.
MENTIONED:
Mary Rice Hasson, Author at Ethics & Public Policy Center (eppc.org)
Sharonell Fulton, et al. v. City of Philadelphia – Becket (becketlaw.org)
Charles Rice | The Law School | University of Notre Dame (nd.edu)
RFRA Info Central – Becket (becketlaw.org)
Will the Supreme Court Revisit Employment Division v. Smith? | The Federalist Society (fedsoc.org)
Transcription
Gayle Trotter (GT)
I want to welcome everybody to Right in DC’s first clubhouse about the First Amendment. I’m so excited to have as our guest today, Mary Rice Hasson. She is a dear friend. We have been able to run in the same circles in Washington D.C. with conservatives and women political commentators. Mary, thank you so much for joining me today.
Mary Rice Hasson (MRH)
Thank you so much, Gayle. It’s wonderful to be talking with you, especially about something like the First Amendment, which is not just a hot topic, but it’s got such deep roots for our country and for everything we believe.
GT
That’s right, and I thought, “How appropriate,” and I didn’t do this on purpose, but our discussion is right during Holy Week, the most important week for Christians around the world. Our country has been such a beacon of religious freedom. I think a lot of us are seeing the threats, not only faced by Christians in American politics, but also by people of faith of all different religions, and you’ve certainly worked on that.
MRH
It’s interesting. The Gallup poll that came out, I think it was Gallup, it may have been Pew, talking about the decline of religiosity in America. For the first time, we have half of people in our society saying that they belong to a church, or just slightly more than half, would no longer consider themselves to be affiliated with a particular church. I think that has consequences. I think certainly people have to find their own way and everyone’s got their own spiritual journey, but I think as our society has lost a cohesive sense of being, even just believers, respecting a pluralism of various beliefs. But as that has been declined, I think we’re also seeing a generation coming up that has much less familiarity with religion. Therefore, less of a perhaps intuitive understanding of why people hold their beliefs so strongly. What it means to have a conscientious objection and things like that. I see a relationship between the two. I don’t know about you.
GT
Absolutely. I think that’s why it’s so important to reach out to people where they are. You’re an expert on this because you are an attorney like I am, and you’re the Kate O’Beirne Fellow, at the Ethics & Public Policy Center in Washington D. C. and you’re the director of the Catholic Women’s Forum, which is a Network of Catholic Professional Women & Scholars. I want you to share with us a little bit later about the project that you’ve cofounded: The Person and Identity Project. Apparently, it’s an initiative that equips parents and faith-based institutions with the resources they need to counter gender ideology and promote the truth about the human person. You have seven grown children, I have six children, only two of whom, I think I can count as grown. I’m a little behind you in the process, but I think you and I have a lot of overlap on the issues that we’re trying to educate people about.
When we think about the American experience, I think the Bill of Rights, undergirds so many of the things that makes our culture unique. Tonight, we’re really going to jump into this First Amendment issue. This was the one question that Amy Coney Barrett was tripped up on. I don’t know if you noticed this in her hearing when Senator Ben Sasse asked her. I think he asked her, “What are the five components of the First Amendment?” She, if I remember correctly, thought of four of them. She was a little surprised by his question because it was supposed to be cold calling on people like law school. He was supposed to be friendly, but it was pretty funny.
The two issues that we’re going to talk about tonight are free speech and freedom of religion. You and I talked a little bit ahead of this conversation about a really interesting case dealing with a university and a man of faith, a man of belief, and the struggle he has undergone and the court essentially ruling, at least at the level that the case is at now, on his behalf. Can you tell us a little bit about that case?
MRH
Sure. I think it’s kind of a bellwether. It’s very interesting that the court ruled the way that it did. Just to clarify to bring people up to speed, this is a case filed by a university professor who was alleging that the university that employed him, which was Shawnee State University, was violating his First Amendment rights because the underlying factual circumstances was he was teaching a course, and there was a student in his class who he apparently did not realize was identifying as transgender. He referred to the student by calling him, “sir” or “mister” which was his practice in terms of how he spoke to students in his class. They were mister, or miss, ms. , and this particular student, a male, came up to the professor afterwards and said, “I’m transgender. I identify as female, and I want you to call me by feminine pronouns. ” The professor did not want to do that. He wanted to be respectful, but he had a number of reasons why he didn’t want to. One, was just a plain old free speech. From his own conviction, he believed in the difference between male and female, and pronouns have a meaning. They take the place of the noun, so if he’s talking to someone who is a male, he wants to just use the male pronouns. The ones that would match someone who is male and so just as a matter of free speech, he didn’t want to be compelled and that’s an important concept. That compelled speech. He didn’t want to be compelled to say something he didn’t think was true. Then also from a religious standpoint, he held these beliefs as a matter of faith, as well. He didn’t want to be a messenger, so to speak, of what he viewed as an ideology that deeply conflicted with his beliefs. The student ended up filing a complaint and he felt like he was being punished by the university. They would not even allow him to register his own beliefs on his syllabus. It wasn’t just about what he said, he couldn’t even put on his own syllabus his beliefs and the fact that he was being compelled to comply with this pronoun policy. He ended up suing and he initially lost, but the case went up to the Sixth Circuit and they held for him. It was a very strong opinion. It just reaffirmed a professor, in the classroom, still retains the right to speak . That that’s a part of the academic enterprise and the university has no right to compel ideological conformity. I think that’s a key concept.
GT
Isn’t that so fascinating to you? As a lawyer, as a mom, as grandmom, you think about colleges and universities. They are supposed to be the marketplace for ideas, and there’s this idea of academic freedom. Once a professor gets tenure, that they’re not going to be fired for taking an unpopular view. How can young people learn about all these controversial issues if they’re just forced into a stultifying conformity of one viewpoint on every hot topic? I think you have, like you said, the compulsion issue, the academic freedom issue, and then the faith issue. I think that’s really fascinating where the student’s desire to be called by a different pronoun is the student asserting one viewpoint and one right and the professor has an alternative viewpoint and also a right not to be compelled to essentially violate his conscience. It seemed like from the facts of the case, the professor said: I’ll just use last names or I’d be happy as long as I could put something on my syllabus where I could say what my opinion on this was, so he wasn’t being sort of, doctrinaire or sticking his heels in the mud. He was trying to respect the rights of the student, but not give up his own rights.
MRH
Right. I think it’s interesting as you point out that it was this student who was seeking to compel the professor’s speech. I think, at least certainly when I was in college and law school, students had the viewpoint that they were always trying to press the limits. They were going to be more expansive, open up the conversation, be more outrageous, be more sort of new and avant-garde in terms of the topics they were going to broach, etc. I recall people pushing the boundaries the other way in the university environment to be allowed to present a controversial play or things like that. This seems to be going in reverse.
GT
Right, exactly like The Vagina Monologues. That was a huge controversy if they could show that on college campuses. It seems like we have completely flipped where the students are trying to really get the professors to conform to this “woke” ideology.
MRH
Yeah, and apart from just speech, it raises some questions about, one, just the general tenure of the academic environment. Is it a place where you can actually have discussions? Or has this effort to avoid offending people or avoid treading into contested areas, is that really have such a chilling effect that the conversations themselves, the explorations of ideas in the university context, is being limited, really truncated in a way? Just sort of chopped off, but it’s interesting to me that those limits, again, are being proposed in many respects by students.
GT
This is a theme that I think really applies to what we’re talking about tonight and I want to continue exploring this through other amendments to our Bill of Rights and other national political conversations, but I think there is a deficit of courage right now. People lack courage because they see what has become of cancel culture, people losing their jobs, people being shamed online. Not wanting to not be able to support your family or be a productive member of society. I think that the opposition, the side that is really pushing a lot of these ideas, are very effectively marshalling the fear factor with being able to silence people. What do you think about that?
MRH
I think that’s exactly right. I think there are kind of different degrees to that. For example, in the first, what is it now two months of the Biden Administration, the Administration had put the stand down order for the military. They were supposed to engage in some serious soul searching and efforts to retrain and root out violent extremism and things like that. Part of that is restricting the ability of the soldiers to post things, to say things, but that’s a particular environment where people go into the military and they know they don’t have the same latitude. It’s one thing to see that there, but it’s another thing to see people in the university or in working for a corporation. We can remember back to, I think it was Google, James Damore.
GT
Yes.
MRH
Who, just voicing, unpopular beliefs is enough to get you shamed, and censored and then even fired. I feel like we’re sort of losing the ability to make distinctions. Necessary distinctions. As I said, it’s one thing to have people in the military who are going to have more restrictions. Someone who is a public official is going to, perhaps, have less latitude in terms of what they can say on the job and things like that. But particularly in the university community and then just out there in the private sector. Why is it that we are all facing this climate of fear and just real concern that somebody is watching your every move. Your every Tweet, your every posting on Facebook. You can’t ever make a mistake. You can’t ever really say what you think.
GT
Right. I don’t think that’s healthy for society because if people just push their opinions underground, and you can’t have genuine conversations with people about these issues that we, in a republic, decide. We come together with our laws, and we decide on policy, and if people can’t have reasonable conversations without fear of getting fired. It’s one thing, someone says something controversial and people disagree with them, vehemently, there’s no problem with that. It’s the death threats and the boycotts and the efforts to have people fired at work. We saw a little bit of this overseas too with Piers Morgan. He had a strongly held opinion about the interview by Oprah Winfrey of Meghan Markle and Prince Harry and then it rippled over to this shore. Sharon Osbourne stuck up for Piers Morgan and then she left the American show she was on. I think we’re dealing with this from kindergarten through the very end of the work life. You recently testified before the Senate Judiciary Committee on this very controversial Equality Act. I feel like the Democrats are very good at coming up with names for legislation. That if anyone says they’re opposed to the legislation, that just on the face of it, people oppose it, because who could possibly oppose an Equality Act, right?
MRH
Right. Exactly. I think unfortunately that’s one of the problematic things. Because it’s hard to have a serious discussion; because we’re all experiencing this sense of this climate of fear and intimidation. It’s fear on the part of the speaker, but it’s intimidation and sort of, threats and an exercise of power on the part of those who are claiming offense. It makes us poor. For example, there were widely divergent views on the Equality Act and yet because you have the framing, it’s either equality or it’s discrimination. Impede the side of justice or you’re a bigot. How do you bridge that gap if you can’t even have a conversation?
GT
No, and even bringing up the topic can get you cancelled. Explain a little bit what the Equality Act is because I think a lot of people aren’t familiar with the actual parts of the statute, the bill that’s being proposed.
MRH
I think one place where we do agree and this was something that I think almost every speaker at the Senate Judiciary Committee Hearings brought up, is that we all agree that people should be treated with respect. That all human beings have dignity and that nobody wants to see unjust discrimination. We can agree on that. It’s what comes after that. What this law does, is a couple things. It really is such a stretch from previous civil rights laws. First of all, it expands the categories of protected classes or characteristics. The things that you cannot discriminate on the basis of and the most contested of those is the idea of gender identity. That’s one thing. It expands the categories. But another thing it does, is it expands the kinds of places and situations where an American is all of a sudden going to be subject to antidiscrimination laws, these civil rights laws, and is risking a lawsuit. That particularly affects people who are religious believers.
If you’re running a homeless shelter and you divide the sleeping quarters by male and female in the evening, it’s reasonable that as a person of faith, you want to respect the differences that you believe in between the sexes. There are also practical considerations. You want to care for the women who may have suffered from violence or things like that. But the Equality Act, a woman comes in, in other words, whose gender identity is as a “woman,” does his identity claim take priority over the free exercise of religion of that shelter owner? It takes priority over the privacy concerns of the females who are there and who are saying: “Gee, wait a minute. This is my space. I need a sex-segregated space because I don’t feel comfortable having someone who is a biological male sleeping in the bed next to me, when I just fled a violent situation, or whatever it may be.”
We see this clash between the claim that gender identity trumps everything. Just by making that claim of gender identity, the religious person can no longer say what they think or live out their beliefs because they’re going to be risking a lawsuit. In the same way, women are losing that ability to, one, define what it means to be a woman. We’re losing control of that. But also the right to have privacy and safe spaces. It’s the safety factor that goes along with that.
I forgot one important detail, it’s not a detail really, it’s a feature of the Equality Act. It’s not just that it expands these categories of protecting characteristics to include sexual orientation and gender identity. It’s not just that it expands the idea of public accommodations beyond restaurants and stadiums and things like that to include any gathering. It says if you’re a religious believer and you are not willing to go along with a privileged gender identity over biological sex, you have lost. You are not going to be able to claim a religious freedom defense under the Religious Freedom Restoration Act, which is a particular statute that Congress passed bipartisan, near unanimous, to protect the rights of religious believers in those situations where there is a burden that’s placed on their faith. They get to say: “Hey, wait a minute. Let’s take this to court. Let’s figure out what the best balance is.”
The Equality says: If you’re a religious believer, you can’t even do that. You can’t even make that claim of religious freedom. You can’t even say, “Hey, wait a minute. Can we balance this? Can we assess the burden versus the compelling interest?” It’s just foreclosed. That is drastic. That’s one reason why there is so many religious organizations that oppose this, even though there may be other things that they might like about the bill.
GT
I think that is such an essential critique of this bill, that people need to understand because this Religious Freedom Restoration Act was passed by Congress in response to a Supreme Court case that dealt with Native Americans and peyote use. It was really a response from the Congress saying: “No, we’re really going to protect religious freedom.” It has been so essential over the last few years and many of these cases where courts are unwilling to protect certain beliefs or activities under the First Amendment, but they use this congressional statute to protect some of these activities.
I think this underscores the point where people who want to support that Equality Act might have the argument and say: “Let’s pass it and we’ll let the courts work it out because we want to be overinclusive on making sure that we are a fair society. The courts will make sure that we don’t overstep the bounds and intrude on First Amendment rights.” I think that’s what you’re going to hear a lot of people saying. The response to that, I think, is: “You can’t rely on the courts to take on all of these things with such a huge law that impacts, like you said, it just broadens all of these definitions.” You remember under the Obama Administration, there was a “Dear Colleague” letter that talked about the K-12 situation of locker rooms, bathrooms, sports teams, and there was a threat with this Obama Administration “Dear Colleague” letter that if the schools across the nation, kindergarten through 12, did not comply with was in this letter, that their funding would be threatened.
There is no way for all of these schools across the country to litigate this. As you know, the Supreme Court only takes up a handful of cases every year on any particular issue, and I think that needs to be strongly pushed back on because you can’t throw it out there, throw the spaghetti on the wall. These legislatures really need to take this into account and particularly looking at the Democrat legislatures, not just Catholic, but of all faiths that they are really opening a Pandora’s box here that I think could have really deleterious effects on belief across the board.
MHR
A couple of things on that. You described so well how the Equality Act came to be, but I think one thing perhaps people don’t realize or appreciate is over the past 20 years, it’s been minority faiths that have benefitted in a huge way by having the Religious Freedom Restoration Act available to them. Whether it’s a police officer who is of the Muslim faith and believes he needs to keep his beard, there was a case there that litigated his ability to keep his beard and not force him when they had dress code requirements that said otherwise, but for him to be able to do that. Same thing with Native American faiths, Orthodox Jews. It’s not just Christians.
All the various faiths we have in this country that have turned and said: Wait a minute. We’re not saying if you’re a believer you get to do anything you want. What the Religious Freedom Restoration Act does, is if your faith is burdened by a requirement, that means you get to say to the court, let’s look at this. The state has to show that they have a compelling interest; that they’ve chosen the least restrictive means once I show that my faith is burdened. It’s not just a green light that people of faith get to win every case. All it does is bring the matter to a more serious consideration of all the interests and all the parties. People of minority faith really risk to lose a lot and I think that’s underestimated.
I think there is some other aspects here, too, with the Equality Act. You mentioned girls sports and things like that. Even if the courts came along later and protected some of these rights that we know are going to be put at issue, whether it’s freedom of religion, or women’s ability to have female-only sports and have that being a fair playing field and things like that. Even if the courts, three or four years down the road eventually ruled in favor of those interests. In the meantime, three or four years of cultural practice and legal practice that is completely the opposite and that has its own chilling effect. That changes things. It’s not good enough to just say, as you had brought up, that we’ll let the courts solve this, because the law is a teacher. And the law is going to be teaching from day one that religion and people of faith, can’t live their faith out in the public square if it’s going to conflict with gender identity instead of allowing this balancing.
It’s a dangerous thing, really, to have a statute that is just, simply from a lawyer’s standpoint, it’s just written so broadly, so dangerously overbroad that the implications are going to be far reaching. And not know how it’s going to play out. You know that a lot of people’s rights that they enjoy today, are going to be affected the minute that law passes.
GT
I think that’s a really powerful statement that you made that the law is a teacher. If you pass something like this and people change their behavior in line with it. We have seen this over and over again, where the courts have declined to rule on particular rights because of the practice. That has changed. These cultural ideas that have changed, and I think about that. You’re saying this is a huge sweeping law. Think about that in relation to Obamacare. We ran into this with the First Amendment with Obamacare.
Obamacare didn’t say anything about contraception, or abortifacients, but the Obama Administration, the HHS, came up with the contraceptive mandate which directly impacted people of religious faiths beliefs about contraception and abortifacients and it ended up the Little Sisters of the Poor went up to the Supreme Court two times. I just think about that related to this bill. How many opportunities that we can’t even envision right now will come through regulations that are made through Democrat Administrations and maybe Republican Administrations? Who knows, but that will severely hamper people’s rights.
I just think it’s been such a bad year for people of faith. It’s been a bad year for everyone, but you think of all the churches that have been shut down and the controversies over we’re going to open casinos and gyms in Nevada, but we’re not going to allow the churches to have the same rules. I think it’s a constant battle. Like you said, it’s not just Christians or people of the Jewish faith, its minority faiths, too. That’s the entire point of the Bill of Rights, is to protect minorities from the tyranny of the majority. Right?
MHR
Right. Exactly. I think of how we opened this conversation where were talking about the professor at Shawnee State University and him pushing back on the university saying: I need to be able to be free or you can’t compel me to speak. You can’t compel me to say certain words. Not just this matter of free speech, but a violation of my conscience. Now fast forward here to the Equality Act. If the Equality Act is passed and enshrined into the law; gender identity is a protected characteristic.
We are going to see that exact situation play out across the country because one of the claims or one of the legal rights that someone is going to be able to assert on the basis of gender identity, in the wake of the Equality Act passing, would be the right to not be harassed or not be “discriminated against,” which can be turned around to say, they aren’t going to claim a right to be called a certain pronoun. If you’re claiming a right to be called a certain pronoun, you’re claiming a right to compel someone to call you that. This is just going to multiply that problem.
At the same time, just that language thing – “Equality Act”. If you’re not for whatever this act puts into law, what does that make you? That makes you a discriminator. That makes you a bigot. Again, it may take three or four years to untangle that and curve some of the bad drafting in the sweeping consequences of the act, if it were to be passed. In the meantime, are we, as a culture, really willing to brand anyone who simply believes there is a difference between biological males and biological females? You should not be compelled to say something you don’t believe? Are we going to really all be on board with branding that person a discriminator and a bigot? Not just person, but a church? For history, for thousands of years, this has been an uncontested belief and yet, the Equality Act can just undo that and all of a sudden, those beliefs become bigoted and unacceptable.
GT
Right. Look at the treatment of J. K. Rowling who is not conservative by any stretch of the imagination. In fact, she is very vociferous in her liberal viewpoints about most things, but her detractors came down on her like a ton of bricks for, I think, essentially advancing support for the idea that is until ten seconds ago, was not really a controversial idea. When you think about that in relation to lawsuits and the good of society and how we’re going to — I think for me, the definition of politics is how we order our lives together. Most of our lives are not spent with politics, right? We live with our families and our communities, but when you start getting into those types of things, and then like you’re saying that certain churches are just bigoted or massive ones or minority religions, meaning they don’t have a lot of adherents, not racial minority and it just creates a lot of stress in society that is not going to end well.
MHR
Yeah, and a lot of division. All of a sudden, we’re drawing lines and putting people on one side or another, instead of doing what I think Americans over the course of our country’s relatively short history, have done really well to work out these differences. The Civil War is obviously a huge blight on that, and the institution slavery but those are not the only controversies in our history. We have had many that needed to be resolved in the political process, but also in our towns and in our communities and in our neighborhoods that we rely on the people to speak their mind freely to try to understand better what the other person’s point of view is, and to try to come to some resolution, not you don’t get to speak. Your views are beyond the pale. I think we’re setting up a situation that is not healthy.
GT
Yes. Yet the same people who are advancing this, are the ones, I think screaming from the rooftops about how divisive everything is and how polarized everything is. Fun fact, my first pro bono case out of law school; I was representing a Native American who was incarcerated in Greenville Correctional Center in southern Virginia which is also where death row in Virginia is housed.
MHR
Oh, wow.
GT
I will never forget going there to meet with him, my client, to talk to him about his case, which was about getting accommodation for his religious practice at Greenville Correctional Center. He was not on death row. I remember just walking in that prison and the loud gates slamming behind me and there is no carpeting, it’s all concrete. So when those gates slam, it goes to the very core of your being. You just have this sense of oh my gosh, this is terrifying to be locked in here and thinking about people who are in that situation. We are a humane society. We want to make sure that people have the comfort of faith, whatever their faith is, when they’re in these situations.
You had a great example of the police officer who was Muslim, who won the right to keep his religious beard, even though it violated the dress code. I can’t believe thinking back to that experience right out of law school, and thinking about that particular case that you raise, that people really think that it’s a good idea to go in this direction of squelching people’s religious faith. It’s just astonishing to me.
MHR
Yes, as our country’s religious faith has declined, I really think especially among younger people, there’s a misunderstanding of what a conscience-based belief is. For that Muslim officer, he felt like in his relationship with God, he needed to keep this beard. That was part of him pleasing the God he served. The state, traditionally in our country, the state has understood, people have understood that that relationship with God, the beliefs that we have, the deep-conscience-based beliefs because of our relationship with God, are prior to the Constitution. They’re prior to the laws of the state and so there has been a healthy respect.
I was just born in the ’60s, but I remember my parents talking about — and even in the ’70s — kind of looking back at the pictures of conscientious objectors; people who felt because they were opposed to the war in Vietnam, they could not go and fight. Whatever you thought of that decision, people understood that you can’t compel someone to something they really think is deeply wrong and not just think “my God says I can’t do that.” We, as a culture, are better off when we respect such deeply held beliefs, and we don’t try to compel people to do something that goes against every fiber of your being. No matter how much we disagree with them.
I grew up in a family where my father was a Marine and I’ve got brothers who served and things like that, so I could understand if someone said they disliked the idea of someone being a conscientious objector to that war. Yet, we would respect that, and we would fight for that because respecting that freedom of conscience is so much a part of who we are in the whole founding of our country. Realizing the state doesn’t give and take away that right to religious freedom. The state has to respect it.
GT
Right. How much of that was part of the discussion during the Cold War when we talked about godless communism? I think part of why Pope John Paul II made such an impression on me was because he had been in occupied Poland dealing with the Soviet Occupation, he had so much courage. Reading George Weigel’s biography of him where he had people in the Vatican, essentially working for him, people who were professed to the church, and yet they were working against him on behalf of the Soviets. He had so much courage, and he had a phrase, “Be not afraid.” I think that was such a courageous thing to say. He would say that to the Polish people who were suffering greatly, that there was a solidarity movement and there was so much opposition. Christians and priests were being murdered for speaking out in Poland. He wasn’t saying it to his people, the Polish people, he was saying, “be not afraid” to the entire world.
He was able to work with Margaret Thatcher and Ronald Reagan to help bring down Soviet communism and I find that so inspiring for our time. You have so much courage. I think a lot of people don’t have that level of courage. Your father was such a luminary at Notre Dame and he inspired so many generations of lawyers who I think have that courage to speak out against what they see is happening in the country that is going to affect everybody.
I was wondering if you would tell just a little bit of how you decided to go into law and what kind of animates you in this controversy?
MHR
Good questions. One of the things that I remember growing up, and as you said my dad was a lawyer and he taught constitutional law. I remember him representing sort of unpopular groups within the culture at different junctures because he was representing their constitutional rights, whether it was to freedom of speech, freedom of religion, freedom of association, things like that because he believed so strongly that we need to, as a culture, make room for that. People need to have the courage of their convictions.
But that courage to stand up comes, one, when you believe strongly but two, when you’ve got other people around who respect that and say: You know what, I oppose your idea, but we’re going to make room for you to say that.
I think one of the problems that I see with kind of the younger generation is I think, again, that lack of personal familiarity with faith and maybe a misunderstanding of conscience. I feel like a conscience-based belief is being reduced to just your opinion versus my opinion.
GT
Right. Yes.
MHR
Of course you want to change, because you want to be on the right side of history. It’s a very superficial view that fails to understand the depth of religious faith of conscience, that the relationship between the person and God the state giveth, the state can’t take it away, the state needs to respect it. We fight for that for all and that’s been part of what America is about.
From my own interest in the religious freedom sphere, the free speech sphere are intertwined partly as I said because my dad did a lot of constitutional law and worked on what were some unpopular causes in the early ’70s. He was a prolife lawyer. He filed numerous amicus testified before the Senate and all that stuff. Really arguing that we needed to respect the dignity of the person and recognize, as a matter of constitutional law, that the child is a person who has rights. That was an unpopular position in many respects. It’s funny. It’s sort of gaining more ground. At least in the academic intellectual circles, there is more discussion about that, partly because with the sonogram, it’s less contested. We know who’s in there. We can see. Seeing him being willing to do that, I think was really inspiring to me so that when I went into law that I wanted to be able to use those skills, the analysis to support truths that matter in terms of the country that we are.
My husband many years ago, founded the Becket Fund for Religious Liberty. We never imagined that we would be seeing the kinds of controversy that we’re seeing today.
GT
Really?
MRH
No, the controversy back then were about whether you can have a nativity display in the public square. But these basic core beliefs, can you still say that you believe that marriage is between a male and a female or is that somehow beyond the pale now to even believe that if the law goes in a different direction? To believe that we’re created male and female and that as a matter of faith, the Rabbi should be able to say male and female and we’re going to respect that division and conduct our worship separately. Are we going to respect that or are we going to say: “No. There is no difference between male and female and it doesn’t matter what you believe, you have to conform.”
A lot of my work is really trying to help people, one, understand the truth about who we are as human beings, the difference between male and female and respect for the family and things like that. To encourage everyone, wherever you ever, in terms of these issues to be willing to stand up and speak the truth; to say what you believe and to make room for others to be free to express their beliefs as well. Not to give into this “culture of ideological conformity” which was the phrase used by the Sixth Circuit in that case that we started talking about at the beginning of our conversation.
The state can’t impose an ideological conformity instead of beliefs that everyone has to abide to and must speak only those things that support those views and otherwise you’re silenced or you’re not allowed to participate in the functions of society. To me, that’s incompatible of free society. I would hope there are many more Americans who believe that as well in spite of whatever underlying differences we might have about particular issues.
GT
I think that is a great point and maybe that’s what the whole point of this conversation comes down to, is that anyone who’s listening to this who may agree with all of these points for the Equality Act. They may think that transgendered people should be able to be addressed by the pronoun they want to be addressed by. They may believe that they should be allowed to play on the sports team that they want to, but maybe people who have those opinions after listening to this, can understand that it’s important for our culture, our society, and our rule of law, because the law is a teacher as you said, to make space for the people who don’t agree with that and don’t want to be compelled to say those things, and don’t want to have the disadvantages of not being able to live out their religious faith.
Maybe that is the important takeaway from this conversation, is that you can be 100 percent down with that agenda and yet, and yet, and yet still understand the vital point of allowing people to not be forced into conformity with that view. Even if you think it’s right.
MRH
Right. We used to celebrate that kind of difference, but I don’t know. Not so much anymore.
GT
No. We’ve got a little bit left of the Supreme Court term. They usually release the most controversial opinions in June. What do you see coming up at the end of this term and do you see anything going into the New Year that people should be keeping an eye out for the First Amendment issues?
MRH
Well, there is a big case that is up there right now and it’s a case on Catholic Charities and their adoption services in Philadelphia. Catholic Charities had served along with 30 other different agencies in Philadelphia these kids and unite them with parents. But the Catholic Adoption Agency, because it’s a matter of faith, they have a deep conviction that children are best raised by a mother and a father . They chose to place children with marriage, husbands and wives. The state of Philadelphia decided that that was no longer acceptable, even though no gay couples or lesbian couples were turned away. There were plenty of other adoption agencies to serve them. No same-sex couples actually came to Catholic Charities and said, “We want you to do our adoption,” and got turned away. Nobody got turned away and yet the city of Philadelphia came in and said, “Uh-uh. You believe the wrong things. Because you will not adhere to the belief that there is no difference between a same-sex couple and a couple that’s a husband and wife, we’re not going to contract with you anymore.”
The effect of that hurt children. You have an agency that specializes in special needs kids and things like that and yet the Philadelphia city government seem to be more interested in pushing its viewpoint. An ideological viewpoint about marriage on to Catholic Charities or punishing them if they were unwilling to embrace the preferred viewpoint. Again, we’re poor because of that. When government rejects a perfectly, good, charitable organization. If we drive them out of the public square because they don’t believe the right things. We’re trying to force them to change their beliefs? That case, the Fulton case, will be decided and I expect that it’ll come down towards the end of the term, maybe in June. You never want to predict with the Supreme Court but my hope is, my sense is, it’s likely to uphold the religious freedom because that is so foundational to our beliefs and the members of the court, seem increasingly willing to really back that up, in terms of their decisions. That’s a key one.
GT
That is. I think there’s some continuing controversy with the baker out in Colorado that took his case up to the Supreme Court a couple of years ago. The Supreme Court gave him a victory, but it was not a very robust opinion that they handed down in support of his ability to bake cakes and not violate his faith. He has really been targeted by people. I believe he was asked to make a transgender transition cake and then some sort of Satan cake too. It seems like, gosh, people are just really being nasty in pursuit of this political correctness.
What do you think will happen with him given the Supreme Court the last time they heard something similar related to this particular baker didn’t give such a robust defense of his First Amendment rights.
MRH
I hope they’ll do the right thing. I’m not quite as confident, but I think if we step back and look at it with some logic. If you were hiring someone to paint your portrait and they just didn’t want to, would you really want to compel them to paint your portrait?
GT
No.
MRH
When you’re dealing with individuals, and you want to hire them to do something, it’s important to respect the reasons why they decline when they’re rooted in a First Amendment — it’s not rooted in prejudice, it’s rooted in a First Amendment belief that he cannot celebrate certain kinds of events. Just as he’s not going to put a message on the cake that glorifies Satan, that violates his belief. We shouldn’t want to compel him to do that.
GT
No.
MRH
Just a civilized society. In the same way, if he doesn’t want to celebrate the gender transition as a matter of faith, well, don’t compel him. Buy a birthday cake from him instead or something. He’ll sell you a birthday cake.
GT
Yes.
MRH
What he’s saying is: I just can’t be part of that. That celebration that you’re having. I’m not going to get in the way of it. You go do your thing, but don’t try to compel me to be part of this in violation of my beliefs. I think that’s the word to just kind of highlight here is the issue of compulsion and compassion to others to say things that they don’t believe, to do things that violate their conscience. That in a society, that should be across the line. That should be too far and that surely we can agree on that. That we don’t want to compel others to violate their deeply held beliefs.
GT
To wrap this up Mary, can you give us a message of hope this Holy Week 2021 for our First Amendment rights?
MRH
It is America and we still have the right to say what we believe and to worship our God and this is a holy week. I’m just grateful to be here, to be an American, to have the state recognize in these freedoms and even though much of this is contested right now, I do have faith that Americans are good people and so I’m going to pray and worship this week and be grateful for the blessings that we have.
GT
I hope your family has a wonderful Holy Week and if people want to find out more about you and your work, where should they go look?
MRH
They can look me up at the Ethics of Public Policy Center or if they’re interested in work that I do on gender ideology and the human person, you can look at personandidentity.com.
GT
Is there anything else you want to share as we close down this chatroom?
MRH
Just saying thank you for the work you do and just for your delightful way of opening up conversations. I look forward to seeing what you cover next, and I think there will be some great conversations coming out of it.
GT
Excellent. Well, I hope to have you back and have a wonderful Holy Week and Happy Easter, Mary.
MRH
Thank you. You too, Gayle.
