Legal Docket: Religious liberty disputes in lower courts

MARY REICHARD, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the first day of August, 2022.

Good morning to you, I’m Mary Reichard.

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

Today, we hear about religious liberty cases percolating in the lower courts. One firm that specializes in these cases is First Liberty Institute.

REICHARD: That firm had some big wins this year, really big wins! At the Supreme Court. We’ll touch on those, but for today, I really wanted to hear a smattering of the cases First Liberty is handling that haven’t reached the high court.

Mind you, I’m only talking to one side of these disputes, but the purpose is to inform you of what’s bubbling up in the lower courts.

Here now is part of my conversation with First Liberty’s senior counsel Jeremy Dys. I begin by asking him for the status of the case known as Sweet Cakes by Melissa, that’s been dragging on for years.

JEREMY DYS, GUEST: Yeah, this is a case going all the way back to 2013. This is Aaron and Melissa Klein, living the American dream, you know, they started a small business, doing something that Melissa really had both a passion and a skill with and that was doing really beautiful wedding cakes and customized designs for wedding cakes and anniversary cakes and things like that. And here's the story, you guys know it already, that someone came in to ask for a wedding cake that was the same sex couple, they politely declined at the time in Oregon, when same sex marriage was still against the law. They politely declined citing their religious beliefs. And very soon thereafter, they found themselves brought up on charges and for the Bureau of Labor and Industry in the state of Oregon. And ever since then, they were fined like $150,000. That money has just been sitting in escrow for the last almost nine years, waiting for that to be returned to Aaron and Melissa. They've gone to the Supreme Court once. They've had to go back to the state of Oregon, they've had multiple levels of appeal in Oregon. And just recently, they actually had some of that money returned, but the decision itself has not been disturbed at all. And so in the next couple of weeks, we're probably going to have to appeal to the Supreme Court of United States, again, to see if we can vindicate their their First Amendment freedoms.

REICHARD: Let's move on now we're going to move very quickly through these cases, Shields of Strength. This involves Kenny and Tammy Vaughn who started a company. Tell us about that one.

DYS: Yeah, these are little dog tags, or little additions of the dog tags anyway, that Kenny made just as a way to encourage men and women that are on the battlefield. They bear the logo of the military on one side, whether its’s the Navy, the Marine Corps or whatever. And on the other side, they have has an inspirational saying, usually a Bible verse or something like that. And the Department of Defense has come out and said, you know what we don't like that. Those religious things appear opposite of our logos. And so they've been hassling Kenny and his wife for a couple of years now trying to get them to stop this process. But we've been fighting on behalf of Kenny for multiple years making sure that our men and women who are sacrificing themselves in the frontlines defending our freedom have the freedom to wear something that's important to them, namely their faith.

REICHARD: Third case we want to talk about involves the US Navy SEALs where the government is forcing a choice between exercising your religious liberty and service to one's country. Tell us about these 35 Navy SEALs.

DYS:Yeah, we're not only talking about 35 Navy SEALs, those are the guys that are on the front lines of this right now that decided to put their name on the actual line. But they've also now been fighting for the whole Navy. We've got a class action in place that protects our members of the Navy. But look, there are a lot of people that have a religious objection to taking the COVID shot. But we're still fighting, you know, two years into this plus of this, this pandemic, to ask the Department of Defense to simply recognize and protect the conscience rights of the men and women of our armed forces. And yet, we have a Department of Defense that is just absolutely insistent on either driving good men and women out of the military that have a religious objection to this COVID shot. Or fighting us all along the way to before they're willing to back off of this.

REICHARD: Mm-hm. And I understand that every one of the denials that the Navy issued is exactly the same. So it suggests that the Navy is just not taking these religious accommodation requests seriously at all.

DYS: Yeah, that's exactly right. It's kind of a foregone conclusion, it's a multi-step process that supposed to be individualized case by case. And yet, what goes into the machine comes out exactly the same 35 steps later. A rubber stamping that the judge said the Navy is engaged in here.

REICHARD: Mm-hm. Well let's move on now, Jeremy, to case number four: Calvary Missionary Baptist Church. This involves an indoor Junior Olympic sized pool in Florida. Tell us about that one.

DYS: This is a small African American church in the middle of the state of Florida that wants to serve its community. And they happen to have a resource with which to do that. There are no real free pools in the area of Florida. And by the way, Florida tends to be pretty hot in the summertime. And they have this family life center that they'd like to open up to the entire community. The problem is that their pool has a broken pump. And in order to repair that would be very, very expensive for the church to do so. But thank goodness, the City actually has a grant program that they're allowed to apply to - they qualify for the grant, they've actually, the city's been back and forth in terms of whether or not they've applied or approved this grant or not. Most recently, they were negotiating with us to kind of finalize the grant. And then I mean, just suddenly out of the blue, they cut off all communications with us. And I think they're going to take the next step of actually removing that grant award that they had previously approved. And so it looks like we're actually I have to go to court to say once again, that if a religious organization qualifies for a public benefit program like this grant, then to deny them that, but to approve secular organizations like they have for a golf courses in the area, for instance, that is just rank discrimination. That's something the Supreme Court has addressed not once, not twice, but at least three times in the past 40 years. So I guess we may have to go to court actually, to prove that point again.

REICHARD: Well I want to talk about some encouraging case wins now to leave us all on a high note and not just leave people in despair over these fights that we continually have to have. Talk about the big wins that First Liberty has had.

DYS: You know, we were so delighted to have two wins at the Supreme Court in the last week of its term. So the first one was Carson versus Macon, which was a case out of the state of Maine that opened up the freedom of educational choice for parents across the country. And it basically said, the court said, look, again, if you're going to establish a program to give money for a secular purpose, you cannot then deny people the right to be able to use that for a religious purpose if they qualify for the same thing. So in this case that was being able to send kids to a private school if they wanted to, using state dollars. But if they tried to send that student to a private school that actually believes some sort of religious belief, not just teaches it, but actually believes it, then that was somehow disqualified. This has really changed the landscape right now. And I think across the country, we're going to be seeing states opening up the opportunities for parents to be able to direct the funds of their taxpayer funds to the educational choices that they make for their kids.

But then we had a Coach Kennedy. Coach Kennedy took a knee in private prayer after every football game that he coached as a high school coach in Bremerton High School in Washington. And later on, he was fired. And the Supreme Court said, Look, this is something that we've done throughout our history, and that the important thing in our country today…is that we teach our students to tolerate and in fact, to to create a more diverse society, it's good for us to welcome these incidental displays of religion in public. And so it's perfectly fine for coach Kennedy to engage in prayer, he couldn't be fired for that, nor could somebody be fired for wearing a crucifix around their neck as a teacher or a yarmulke on their head or a hijab around their face.

The court kind of tapped on the microphone and said, Hey, look is this thing on? We need to remind you that the Establishment Clause that you're using as a bottle of Lysol to spray everything down whenever religion pops on schools campus, that is also shared in the same amendment with the Free Exercise Clause. Those are meant to complement one another, the court said, not to work at odds with each other.

REICHARD: Amazing. And the bottom line here really, Jeremy, is what? Somebody has to stand up.

DYS: That's exactly right.

REICHARD: Courage and perseverance. That's what it takes. Jeremy Dys is a lawyer with First Liberty Institute. Jeremy, thanks again.

DYS: Thanks so much for having me.

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