Legal Docket: Defending religious liberty

NICK EICHER, HOST: It’s Monday morning, start of a new work week for The World and Everything in It. Today is the 16th of July, 2018.

Good morning. I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Today as part of our summer series Legal Docket we bring you legal issues emerging in the lower courts.

One matter seemingly already settled but that keeps emerging involves prayer before public meetings.

EICHER: In 2014, the Supreme Court ruled that prayer before city council meetings is Constitutional (Town of Greece v Galloway). But that was a split 5-4 ruling. Atheist, humanist, and secular groups continue to batter away at the precedent whenever possible.

One lawsuit that’s arisen is out of Jackson County, Michigan. Listen as County Commissioner Jonathan Williams opens up the meeting:

WILLIAMS: Lord God we ask that you give this board the wisdom to conduct the people’s business tonight and throughout our tenure. We ask that you allow those first responders, soldiers, and certainly the teachers to know strength as they carry out their most important work in protecting our families and educating our youth.

REICHARD: Jeremy Dys is a lawyer with First Liberty, a Dallas-based organization devoted to religious liberty cases. He’s here to talk about this and other litigation.

Jeremy, let’s start with this case out of Michigan, the Sixth Circuit. I’ve read that it’s actually been somewhat resolved just recently- but not quite?

JEREMY DYS: Well…now we know from our history, our tradition as well as Supreme Court precedent that is perfectly permissible to begin these public meetings with prayer. And in fact the Supreme Court says you could pay a chaplain to do it. They’ve even said that you can have a volunteer from the local community comment and provide this invocation, but the question before the court in the Sixth Circuit was whether or not the lawmakers themselves, these elected officials, if they could give this prayer and the Sixth Circuit concluded, that’s absolutely fine.

That case was recently appealed to the Supreme Court of the United States and… the decision of the Sixth Circuit is going to stand and at least within the Sixth Circuit and we hope that that will expand across the country…That’s good news and a good sign.

REICHARD: Let’s listen to some context here. Listen to how Jackson County Commissioner Daniel Mahoney explains the usefulness of the practice of prayer:

MAHONEY: I’ve been on the county commission for going on four years now. And we sit next to each other and have to handle business that you may not agree with on… You know you may not agree with everybody on how the business that gets handled. But one thing that kind of puts everybody in line is that opportunity at the beginning of the meeting that everybody gets to share a word of prayer or word of encouragement.

REICHARD: So that’s in Michigan. But I read the Supreme Court kind of left us a muddled mess as far as lower court rulings on public prayer. It left in place the opposite ruling for public prayer in Rowan County, North Carolina. That’s in the Fourth Circuit. The Supreme Court opted not to take on that appeal, leaving in place a lower court ruling deeming public prayer unconstitutional. So now what?

DYS: Justice Thomas, I thought a very appropriately in his dissent from denial, meaning he disagreed with the court’s decision not to review this case …and wrote an opinion to explain his reasoning. He made it very clear that the problem that this, this leaves people in that lawmakers in Michigan and Ohio, Tennessee, Kentucky, the Sixth Circuit area they now open their meetings with prayer, but lawmakers in North Carolina, West Virginia, South Carolina, Maryland, Virginia, they can’t open their meetings with a prayer. Now we have this conflict of rulings, but …lawmakers throughout the rest of the country and judges that will have these lawsuits ultimately brought to them need to look at the reasoning and the rationale of the sixth circuit opinion…And so our hope is that the courts across this country, as they have occasion to review these, uh, these situations will follow the reasoning of the Sixth Circuit and reject the reasoning of the Fourth Circuit.

REICHARD: Jeremy, a third prayer matter came before the Supreme Court recently as well. What’s that about?

DYS: Well, we just won a case last week at the Supreme Court of the United States involving Mary Ann Sause who was at home alone one evening and there was a knock on the door. Long story short, it was the police that were …there to investigate a noise complaint at her house….She was very scared because they kept on threatening to take her to jail. And so she asked an officer if she could get down on her knees and pray while they did their investigation and the officer said, sure, whatever. So she did. She hit her knees and put her face on the ground in prayer. Another officer came in who had been outside and asked what she was doing. They kind of laughed that she was praying. The officer ordered her to get up and uh, that she couldn’t pray…They kept on berating her and ‘nobody likes you here’ they said.  ‘You should move back to where you came from.’ Uh, these kinds of things. And so what the Supreme Court of the United States decided was that, uh, the Tenth Circuit had been wrong to grant these police officers qualified immunity. At least for now, more information that they needed to settle that case, but buried in the middle of that opinion…buried in that decision was the line from the court that prayer is clearly a free exercise issue and protected by the First Amendment. So that’s a great win for people to know that they can pray in the safety of their own home, and can’t be abused by government officials who wanted to intimidate them during the investigation.

REICHARD: Moving on now. Attacks on Veterans Memorials haven’t let up. What’s the latest going on in that realm?

DYS: We just filed a case at the Supreme Court of the United States on behalf of the Bladensburg World War One veterans memorial, and that’s right outside of Washington DC. And it’s just an incredible memorial as so many of them are that was erected by a Gold Star moms and the American Legion. And we represent the American Legion and it happens to bear the shape of a cross…And so these, uh, these mothers who, one of them said that she’d never be able to visit her son’s grave. This memorial she said was her son’s grave stone. So it’s been standing there since 1925 when it was put up on American Legion property.

And just recently an atheist decided that was offensive and wants it taken down.  In fact, during the oral argument at the Fourth Circuit that one of the judges there said that perhaps the problem with this monument is just its shape and we should cut off the horizontal arms of this monument and tear it down or something like that. And that’s just shocking. We have appealed to the Supreme Court of the United States because here’s our primary concern. If that monument can be torn down…If the Fourth Circuit’s opinion stands, I think it sets loose a bulldozer that will run from coast to coast knocking down any monument that may invoke a religious imagery or religious language on the side.

REICHARD: OK then. What about conscience protections for healthcare workers?  

DYS: There’s also the case of Dr Eric Walsh, as you well know, a very well qualified medical doctor and doctor of public health. He applied  for a job in Georgia as a Director of Public Health over there. They discovered that he was also a Seventh Day Adventist pastor and in the course of litigation that they ultimately hired him and then immediately fired him soon after reviewing his sermons prior to coming to work there. But during the middle of litigation -this is just incredible- they actually subpoenaed, they asked for copies of his sermons, his sermon notes and all of his sermon transcripts and it was like they knocked down the door of the pastor’s study and wanting to rummage around and find some evidence to use against him or something like that. Thankfully, we were able to file a lawsuit. We were able to prevent them from doing all of that and ultimately they settled the state of Georgia settled with Dr Walsh for almost a quarter of a million dollars. But no one should be fired from their job, for something that they said in the pulpit or a religious belief that they, that they hold dearly to themselves.

REICHARD: So that had a happy legal ending. These kinds of “wins” still involve other costs that are not paid back. Let’s listen to Dr. Walsh tell his perception of the matter, early on in the litigation:

WALSH: I was raised by a single mother….faith is one of the strong reasons I was able to become successful and have two doctoral degrees…my faith ought to influence all aspects of my life and I spoke that way…  I’m a strong believer in faith.

REICHARD: OK, let’s talk about campus free speech cases, long a contentious battle as campuses clamp down on conservative voices at the expense of First Amendment guarantees.

DYS:  Well, the most recent example I can point to there, unfortunately a high school graduation again. And Sam Blackledge is the greatest example. Sam was the Valedictorian or the co Valedictorian of his class in West Prairie, Illinois. And wanted to be able to, uh, to address his colleagues on graduation day as he was entitled to do. In the speech that he prepared referenced the reason for his success as a valedictorian and that was his faith. And I mean minutes before he was supposed to go in, walk down the aisle to, to graduate at the school administration took them aside and said, you, you can’t mention your faith during this.

He debated for a while, but ultimately he wasn’t able to give that speech and so we’ve, uh, we, we, we send a letter to the school district there asking them to correct this issue of pointing out that this is no new issue, that students don’t lose their First Amendment rights when they walk through the schoolhouse gates or across the graduation stage for that matter. And that the Department of Education has been abundantly clear on this point that, that students that control the remarks have the right to reference their faith whether at graduation or a school assignment or class discussion…Unfortunately, I think it’s going to take us having to apply the law to this school district for them to get the message and to stop ruining graduation ceremonies because students want to reference their faith.

REICHARD: Let’s hear Sam Blackledge tell it in his own words.

BLACKLEDGE: It was terrible. I haven’t felt anything like it before. Because I had this hope for people. You know I had this great message offering hope and  I couldn’t give it to them?

REICHARD: And let’s listen to part of the speech he planned to deliver but school officials stopped him:

BLACKLEDGE: Christ came to show us God’s justice in dealing with the unfairness of the world. The cross demonstrates to us the very love of God.  Who died in our place and how we find at the end of the day that without His forgiveness we would never make it.

REICHARD: I think I’ll just let Sam Blackledge have the last word today!

Jeremy Dys is a lawyer with First Liberty based in Dallas.  Thanks, Jeremy!

DYS: Thank you, Mary.

REICHARD: And that’s this week’s Legal Docket.

(AP Photo/Jose Luis Magana) People walk outside of the Supreme Court in Washington on Tuesday, July 10, 2018. 

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