Legal Docket: Fighting for religious liberty

MARY REICHARD, HOST: It’s Monday morning, March 20th, 2023, and you’re listening to The World and Everything in It from WORLD Radio. 

Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket.

Article III of the U.S. Constitution governs the appointments of justices to the Supreme Court and judges to the federal courts. President Joe Biden continues to send a steady stream of judicial nominees to fill the vacancies in federal courts. So far, Biden has appointed 117 Article III judges. He’s on pace for about 150, but it’ll depend, of course, on vacancies. By contrast, in President Trump’s one term, he made 245 appointments.

The Senate confirmed the most recent one last week: civil rights lawyer Jessica Clarke. She’ll become a U.S. District Court judge in Manhattan.

REICHARD: Twenty nominees currently await Senate floor votes. One in particular who caught my attention: Julie Rikelman, nominated for the Boston-based U.S. Court of Appeals for the First Circuit. Rikelman is a litigator for the Center for Reproductive Rights. Last year, she represented the abortion clinic, the losing side, in Dobbs v. Jackson Women’s Health Organization. The decision that overturned Roe v. Wade.

EICHER: Well, let’s go ahead and jump to an update on oral arguments at the Supreme Court. Believe it or not, we are all caught up. We’ve touched on every oral argument the court has heard this term. No opinions to report this week either. But we expect more will be announced soon.

REICHARD: One case the court will hear next month is Groff v. DeJoy. Gerald Groff is a former U.S. postal worker. He’s also a Christian who is represented by attorney Randall Wenger.

RANDALL WENGER: It's a Sabbath accommodation case, and it deals with the larger issue of religious liberty in the workplace.

So we've got a postal worker with a strong conviction against working on Sundays who didn't have to work on Sundays when he first started with the post office.

REICHARD: But when the post office added Sunday Amazon deliveries, that changed. And the post office stopped giving Groff Sundays off.

WENGER: The law, the Civil Rights Act, says that employees are supposed to reasonably accommodate employees' religious beliefs unless it creates an undue hardship for employers. And the issue in that case is what is an undue hardship?

EICHER: Wenger is chief counsel of the Independence Law Center in Harrisburg, Pennsylvania. He concentrates on religious liberty cases. So how does one become a religious liberty attorney? Today, we’ll hear about Wenger’s path to this specialized area of law. Legal correspondent Jenny Rough brings us the story.

ROUGH: Lawyer Randall Wenger has deep roots in Lancaster County, Pennsylvania.

WENGER: ​​So I grew up Mennonite. I am ninth generation Lancaster County.

ROUGH: The Mennonite church traditionally shapes its beliefs around being a good neighbor rather than trying to solve problems through government. Even so, Wenger remembers his dad often expressed gratitude for America and its freedoms. Wenger recalls a day his dad watched a sports game on T.V., something the family usually didn’t do.

WENGER: The national anthem was playing, and I was trying to talk to my dad during it, and he said, “You know what? You need to wait until this is done. We honor our country and we need to treat this with a level of respect.”

ROUGH: When Wenger’s dad heard somebody complaining about the country, he’d say, “Don’t complain. Fix it!”

WENGER: He'd ask on a daily basis: “So what have you done today to make your life significant?” So there is always this sense that you're not just supposed to float through life. You're supposed to make an impact in the things that you do. And that was something that really stuck with me. That became part of my DNA.

ROUGH: These ongoing conversations with his dad piqued Wenger’s interest in public policy. But as he got older, he wasn’t sure what career path to take. Until the day he heard a radio show cover religious liberty issues.

WENGER: And suddenly thought, “Oh, I could affect policy through the law. That sounds interesting.

ROUGH: So, he went to law school.

WENGER: My favorite class was our church and state class at the University of Pennsylvania.

ROUGH: But after graduation, he knew of only a handful of firms involved in religious liberty work. None in Pennsylvania. So he settled on small firm litigation instead.

WENGER: But it was not for me. And my wife said, “Well, why don't you pray? You felt God leading you to do this, to go to law school. You really just ought to pray. And I think she probably had more faith than I did at that point, but I prayed anyway with a friend of mine.

ROUGH: Another litigator at his firm. The two men prayed regularly.

WENGER: And lo and behold, the cases started coming in where we had all kinds of First Amendment cases dealing with religious liberty or pro-life issues and speech, and assembly outside, and signs. I loved it. And it was just a picture of God's faithfulness.

ROUGH: Eventually, Wenger teamed up with the head of the Pennsylvania Family Institute and founded the Independence Law Center. That was 17 years ago. Today, the center has a team of four lawyers. They start each morning in prayer. And then spend their day trying to solve all sorts of problems. Like school bathrooms.

WENGER: And so we've had cases, too many, where we've represented students and their families whose bodily privacy has been violated in a school locker room or in a school bathroom.

ROUGH: This issue is popping up all over the country. And Wenger says schools are having a tough time.

WENGER: Situations where schools would say, “Oh, you identify with that sex now, you can go use that sex’s facilities.” And the downside of that is we're now co-mingling students of both sexes in the same setting where they're getting undressed, where they're using showers. And we've separated those spaces for a reason. We separate those spaces not because of group affiliation. We separate those spaces because of the real anatomical differences.

ROUGH: But Wenger doesn’t only represent student plaintiffs suing the schools. He also represents schools. Fourteen-year-old kids or younger are often left alone to navigate situations where they’re being told they should be okay with being in a state of undress in front of someone of the opposite sex.

WENGER: And how are these kids supposed to figure it out? Well, the way to figure it out is by having the adults be adults and come up with good policies.

ROUGH: So he meets with school boards.

WENGER: How can we address these issues in a way that's going to help parents, help our students, allow us simply to be able to focus on education and be able to steer around these issues that are so problematic.

ROUGH: Wenger’s work as a religious liberties attorney covers a range, local cases to national ones. In 2014, the Supreme Court heard a case against Hobby Lobby Stores, owned by the Green family. The Affordable Care Act has an abortifacient mandate and the business wanted a religious exemption. Well, that case was consolidated with another case, one brought by Wenger’s clients—a Pennsylvania Mennonite family who ran a cabinet-making business. They also objected to providing employees drugs that would result in abortions.

WENGER: And for the Supreme Court nerds out there, Justice Alito, in giving us the win, wrote first about the Hahn family in Conestoga Wood before he wrote about the Greens. I, you know, we should have called this the Conestoga Wood case not the Hobby Lobby case.

ROUGH: Wenger says the case is important. It affirms all individual rights.

WENGER: Our rights tend to go hand. If government can force somebody to violate their most deeply held convictions, how do you protect freedom of speech? How do you protect freedom of assembly at that point? Our rights walk together. And if we're going to protect any of them, we need to protect all of them.

ROUGH: The reality of Wenger’s line of work requires taking individuals and corporations to court. So how does his faith affect that?

WENGER: We live in this amazing system we've got freedom because of the kind of government that God has given us. Sometimes we think about the courts only in terms of a caricature of one person hating another person, and so they’re going to go to court and they’re going to try to stick it to them. But when we're dealing with civil rights issues, one of the best ways that we can deal with civil rights issues is through the law. And it doesn't mean that we need to file the lawsuit immediately.

ROUGH: That’s the last resort. Wenger tries to have the parties come to a consensus first. But when the parties reach an impasse, courts are the umpire.

Sometimes even just a conference with a judge can resolve things amicably. That happened once when Wenger represented a school Bible club. The students wanted to give Bibles to other students who walked up to their table. The school wanted to prohibit that. By the end of the court conference, the parties had worked out an agreement

WENGER: So it's not what people see on T.V. of a really adversarial relationship. We do our best to try to work together and get the simplest solutions that we can, but other times it requires you to go all the way to the Supreme Court.

ROUGH: Like in the Groff case. The former postal worker who wants to work, just not on Sundays. We’ll cover that in more detail next month.

WENGER: So stay tuned.

ROUGH: That’s this week’s Legal Docket.

I’m Jenny Rough.

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