Legal Docket - Religious liberty updates

MARY REICHARD, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 17th of August, 2020. Good morning to you, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s still summertime, and that means the U.S. Supreme Court is not in session. So that gives us the opportunity to explore what’s going on in the lower courts. That’s what we’ll do today on Legal Docket. 

Speaking of which: Tomorrow on the Legal Docket podcast, you’ll want to hear a deep treatment of the Espinoza case on school choice. That was one of the big Supreme Court cases this term. A fresh, new episode of the Legal Docket podcast releases tomorrow. Search for “Legal Docket” and subscribe free wherever you get your podcasts. Or you can just wait for Saturday and we’ll release it in this feed. But why wait? It’s really good.

REICHARD: First though: an update on the skirmish between Pastor John MacArthur and Grace Community Church and Los Angeles County. 

On Friday, a trial court judge granted a temporary order to permit indoor church services with no attendance cap, singing allowed. But on Saturday, the California Court of Appeal issued an emergency order to overrule that trial court judge.

EICHER: The Court of Appeal said Grace Community Church could hold outdoor services, but not indoor services while litigation is pending. 

Pastor MacArthur held an indoor worship service anyway as he has for several weeks. A full hearing on the matter is set for September 4th.

REICHARD: Well, as you mentioned, Nick, it’s summertime and that’s when I call up lawyers who work to protect religious liberty and get some updates for ongoing litigation. It’s a testament to the long and winding road litigation often entails. 

Now, you’ve likely heard of most if not all three of these cases.  

One of the firms dedicated to that cause is First Liberty Institute. The firm represents Coach Joe Kennedy.

EICHER: He was an assistant football coach at Bremerton High School near Seattle for seven years. 

The trouble came when the school took issue with Coach Kennedy’s praying. He’d take a knee after a football game and offer a prayer of thanks or to pray if a player had gone down with an injury. Several students and staff would join in.

The school district told him to stop doing that because they thought that looked like state endorsement of religion, and thought it violated the Establishment Clause of the U.S. Constitution.

REICHARD: Eventually, the school suspended him and didn’t renew his contract. Kennedy sued for violation of his free-exercise rights also protected under the First Amendment. 

I asked First Liberty Institute’s general counsel, Michael Berry, to expound on that.

BERRY: As an American citizen, as a public school employee, he doesn’t lose or shed his rights as an American simply because he works for the government. In this case, a public school district. Beyond his free exercise rights, we were also talking about his free speech rights, you know, because prayer is a form of expression. It’s a form of speech and those were also taken away. And so and, and of course as a public employee, those rights are protected under Title VII of the Civil Rights Act of 1964. So there’s also a statutory violation at risk here. So that’s what we’re fighting for and obviously we’re hoping the Ninth Circuit reverses the lower court.

I made the comment that some people feel that Christianity is constantly put in the hot seat while other religions are left alone by these sort of government actions.

BERRY: There’s actually evidence in the record that there were other coaches at the time who actually did engage in other forms of religious expression. And in this case, it was a coach who happened to be a Buddhist and would do a Buddhist chant after the games. And the school district took no action against that coach, but they did fire coach Kennedy. 

So again, this is a matter of people of faith being treated differently, which was what the Constitution forbids.

This case has gone up and down the court system. I asked Berry where the case is in the process now.

BERRY: You know First Liberty Institute, we represent Coach Kennedy and we represented him all the way back in 2015. We filed a federal lawsuit in the Western District of Washington. And we had to fight our way through the district court, then through the infamous Ninth Circuit Court of Appeals and all the way to the U.S. Supreme Court. And the Supreme Court told us that they weren’t quite ready to hear the case just yet. And so they sent it back down. And so back down we went to the district court, and we lost on what’s called a motion for summary judgment there. And we have just recently appealed that decision to the Ninth Circuit. 

So we are back again at the Ninth Circuit and we are fighting for Coach Kennedy’s rights to be a football coach who is able to express his faith openly.

Case two has also been around a long time now. Aaron and Melissa Klein ran a bakery called Sweet Cakes by Melissa, just outside Portland. This case is similar to that of Jack Phillips in Colorado, who politely turned down a request to create a custom wedding cake for a same-sex couple. That, because of their sincerely held religious belief that marriage is between one man and one woman. 

But then Oregon’s Bureau of Labor and Industries came after them for discrimination.

BERRY: The Bureau of Labor and Industry actually went after Aaron and Melissa and they fined them $135,000. They took that money from them and they wiped them out and put them out of business, you know, this one started in the state court. And then it went to the Oregon Supreme Court. And then from there, obviously you get to go to the U.S. Supreme Court and we brought it to the U.S. Supreme Court. 

And they did something called a GVR, which is known as a “grant, vacate, remand.” So they actually granted the case. So we actually had a case at the U.S. Supreme Court, but the facts were so egregious that they sent it back down to the state of Oregon and said, “Hey, you guys need to redo this.”

OK, third and final case today: war memorials.

If you’ve been at a Veterans Administration facility or military installation, you’ve likely seen a simple table set up to honor those declared missing in action or prisoners of war. They’re called POW/MIA remembrance tables. 

Thousands of these tables are set up around the country. One of them is at the VA medical center in Manchester, New Hampshire. The display is under attack because a Bible is part of the display. 

I asked Berry to catch us up from there.

BERRY: And in this case, the Bible itself that’s part of the display in Manchester was donated by this former World War II POW, who also recently passed away, sadly. 

But this Bible was donated by this former WWII POW and it sat there undisturbed for many years, but then lo and behold, an activist group who opposes religious freedom, they saw this Bible and they filed a lawsuit and the lawsuit was filed against the VA in order to try to have the Bible stripped away from this table and removed. 

And so First Liberty Institute actually represents the veterans organization that helped put the table there. It’s the Northeast POW/MIA network. And we are fighting. We are currently in the district court. So we’re still at the trial level. 

And I’ve got to tell you, this case really makes me angry as a veteran myself. Because if there’s one thing veterans should be able to do? We should be able to honor and remember those who have served and gone before us. And as I’ve said before, I will say again: if they want to remove that Bible from the POW/MIA Remembrance table? They’re going to have to come through us.

And that’s this week’s Legal Docket.

(AP Photo/Manuel Balce Ceneta, File) This June 30, 2020, file photo shows the U.S. Supreme Court in Washington. 

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