Legal Record: Religious Freedom Litigation in Lower Courts


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

Hello to you, I am Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for the legal case.

Today, we hear of religious freedom cases that seep into the lower courts. A company that specializes in these cases is the First Liberty Institute.

REICHARD: This company has had some big wins this year, really big wins! At the Supreme Court. We’ll get to that, but for today I really wanted to hear a few cases handled by First Liberty that didn’t make it to the high court.

Mind you, I’m only talking about one side of these disputes, but the point is to let you know what’s bubbling in the lower courts.

Now here’s part of my conversation with First Liberty’s lead attorney, Jeremy Dys. I start by asking her about the case known as Sweet Cakes by Melissa, which has been dragging on for years.

JEREMY DYS, GUEST: Yeah, it’s a case that goes back to 2013. Here’s 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 making really beautiful wedding cakes and custom designs for wedding cakes and birthday cakes and things like that. And here’s the story, you already know, that someone came to ask for a wedding cake for a same-sex couple, they politely declined back in Oregon when same-sex marriage was still prohibited by law. They politely declined citing their religious beliefs. And very soon after, they found themselves charged and for the Oregon State Bureau of Labor and Industry. And since then they have been fined $150,000. This money has been locked up for almost nine years, waiting to be returned to Aaron and Melissa. They went to the Supreme Court once. They had to go back to Oregon State, they had multiple levels of appeal in Oregon. And just recently they actually got some of that money back, but the decision itself hasn’t changed at all. And so in the next two weeks, we’ll probably have to appeal to the Supreme Court of the United States, again, to see if we can enforce their First Amendment freedoms.

REICHARD: Moving on now, we’re going to go through these cases very quickly, Shields of Strength. It’s about Kenny and Tammy Vaughn starting a business. Tell us about this one.

DYS: Yeah, these are little dog tags, or little additions to dog tags anyway, that Kenny made just as a way to encourage the men and women who are on the battlefield. They have the army logo on one side, be it Navy, Marine Corps or whatever. And on the other side they have an inspirational saying, usually a Bible verse or something. And the Department of Defense came out and said, you know what we don’t like. These religious things appear in front of our logos. And so they’ve been pestering Kenny and his wife for a few years now to try to get them to stop this process. But we have been fighting on Kenny’s behalf for many years to ensure that our men and women who sacrifice on the front lines to defend our freedom have the freedom to wear something that is important to them, and that is their faith.

REICHARD: The third case we want to talk about involves US Navy SEALs where the government forces a choice between exercising your religious freedom and serving your country. Tell us about these 35 Navy SEALs.

DYS: Yeah, we’re not just talking about 35 Navy SEALs, it’s the guys who are on the front lines right now who decided to put their names on the actual line. But they also fought for the entire Navy. We have a class action lawsuit in place that protects our Navy members. But look, there are a lot of people who have a religious objection to getting the COVID shot. But we’re still fighting, you know, two years into this pandemic, asking the Department of Defense to just recognize and protect the conscience rights of the men and women of our armed forces. And yet we have a Department of Defense that absolutely insists on kicking good men and women out of the military who have a religious objection to this COVID hit. Or fight us all the way before they’re ready to back down.

REICHARD: Mm-hm. And I understand that every denial issued by the Navy is exactly the same. This therefore suggests that the Navy simply does not take these requests for religious accommodation seriously.

DYS: Yes, that’s exactly it. It’s a bit of a foregone conclusion, it’s a multi-step process meant to be individualized on a case-by-case basis. And yet, what goes into the machine comes out exactly the same 35 steps later. A rubber stamp that the judge said the Navy is engaged here.

REICHARD: Mm-hm. Now let’s move on, Jeremy, to case number four: Calvary Missionary Baptist Church. This is a Junior Olympic size indoor pool in Florida. Tell us about this one.

DYS: It’s 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 to do it. There are no real free pools in the Florida area. And by the way, Florida tends to be quite hot in the summer. And they have this family life center that they would like to open to the whole community. The problem is that their pool has a broken pump. And to fix it, it would be very, very expensive for the church to do it. But thank goodness the city actually has a grant program that they’re allowed to apply to – they’re eligible for the grant, they actually have, the city has been going back and forth to find out whether or not they applied or approved this grant or not. More recently, they were negotiating with us to sort of finalize the grant. And then I mean, suddenly out of the blue, they cut off all communications with us. And I think they’re going to take the next step by removing this subsidy that they previously approved. And so it looks like we actually 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 endorse secular organizations like them have done this for a golf course in the area, for example, it’s just rank discrimination. This is a question that the Supreme Court has addressed not once, not twice, but at least three times over the past 40 years. So I guess we may have to go to court to prove this point again.

REICHARD: Well, I want to talk now about some encouraging wins to leave us all on a high and not just leave people desperate for these fights that we continually have to have. Talk about the great victories that First Liberty has won.

DYS: You know, we were so thrilled to have two Supreme Court victories in the last week of his tenure. So the first was Carson v. Macon, which was an out-of-state Maine case that opened up freedom of choice in education for parents across the country. And he basically said, the court said, look, again, if you’re going to set up a program to give money away for secular purposes, you can’t deny people the right to be able to use it for religious purposes if they qualify for the same. So in this case it was about being able to send kids to private school if they wanted to, using state dollars. But if they were trying to send that student to a private school that actually believes in some kind of religious belief, not only teaches it, but actually believes in it, then that’s been kind of disqualified. It really changed the landscape right now. And I think across the country, we’re going to see states offering parents the ability to direct their taxpayers’ funds toward the educational choices they make for their children.

But then we had a Kennedy coach. Coach Kennedy knelt in private prayer after every football game he coached as a high school coach at Bremerton High School in Washington. And later 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 create a more diverse society, it is good for us to welcome these casual 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 someone be fired for wearing a crucifix around their neck as a teacher or a yarmulke on the head or a hijab around the face.

The court kind of tapped on the microphone and said, Hey, look, is that thing on? We must remind you that the establishment clause that you use as a bottle of Lysol to spray everything whenever religion appears on the school campus, which is also shared in the same amendment with the free exercise clause. These are intended to complement each other, the court said, not to operate at odds with each other.

REICHARD: Incredible. And the main thing here really, Jeremy, what is it? Somebody has to get up.

DYS: Exactly.

REICHARD: Courage and perseverance. That’s what it takes. Jeremy Dys is an attorney at the First Liberty Institute. Jeremy, thanks again.

DYS: Thank you very much for inviting me.

WORLD Radio transcriptions are created on very short notice. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative recording of WORLD Radio programming is the audio recording.


About Author

Comments are closed.