Speaker A: Sally and Tommy were in the playground when Sally asked, what does your daddy do? Looking a bit sheepish, Tommy replied, he’s a lawyer.

Honest? Asked Sally, to which Tommy replied, no, just the regular kind.

Speaker B: Welcome to the Cross examiner podcast, the in net’s courtroom in the case of Rationality versus religion. Here, our host uses his experience as both an attorney and an atheist to put religion on trial. We solemnly swear that it is the most informative, educational, and entertaining jury duty you will ever do. And now it’s time for the Cross examiner.

Speaker B: Welcome.

Speaker A: Welcome to the Cross examiner podcast. I am your host, the Cross examiner. I am an atheist. I am an attorney, and I am alarmed. I’m alarmed by the rise of Christian nationalism in the United States, and I’m even more alarmed by the massive amount of misinformation powering that rise. I started this podcast to try to help entertain and educate so that you could be armed with the facts and push back against that misinformation, especially where it involves church and state issues. Today I am continuing my interview with Ryan Jane of the, uh, freedom from religion foundation.

Speaker B: This is part two.

Speaker A: If you have not heard part one, I strongly recommend you go back and listen. And again, I would like to thank both Ryan Jane and the Freedom from Religion Foundation. Ryan was extremely generous with his time in this part. We are going to be focusing on the issue that I have been discussing for several episodes, which is faith healing and how it hurts children in America. I hope you enjoy this, the second part of the interview.

Speaker B: All right, well, welcome back. We’re here with Ryan Jane of the freedom from religion foundation. And we’ve been talking about the fascinating work that they do protecting everybody. And that’s something that these Christians don’t realize when they are attacking you. You’re protecting everybody from government intrusion based on religion. Do you ever see the light bulb go off when you’re debating somebody or exchanging with somebody? That like, hey, what I said earlier, when is the next, uh, public satan school going to be open? Do they ever recognize that that’s a threat, or do they say, intellectually? I understand that, but we’re a Christian nation, so that will never happen here.

Speaker D: Yeah, I think if the light bulb goes off, they keep it in their subconscious. It bubbles its way up later on. They don’t want me to know.

Speaker B: It’s a very mild light bulb. It’s an Easy Bake oven light bulb. Okay, that makes sense. So, shifting here back to your studies, I believe in school we mentioned this earlier you focused at some point on religiously motivated medical neglect. Is that correct?

Speaker D: I did, yeah. So I was taking a class on children in the law. I wasn’t sure what I wanted to do. Uh, at the time, I hadn’t found FFRF yet, and so I was contemplating doing family law. I was learning about, um, how you can help to protect kids in the law. And this topic came up that a lot of states have faith healing. Exemptions to child medical neglect laws differs from state to state. But in some of them, it’s really horrific, where they have exemptions to things like manslaughter, uh, or even capital murder, where you would otherwise be potentially convicted. But if the reason that you withheld medical treatment was because you believed in faith healing, then you were off the hook. You were just completely exempt from the law. And this pissed me off so much, and I needed something to write my kind of big capstone paper on to the, uh, big project at the end of your law school career that, uh, I decided I wanted to do it on that. So I took a deep dive and wrote on it. And, um, my ambitious attempt at the time was to try to find a way to solve this in all states at the same time. So a federal solution to this problem, which is still a pipe dream of mine. Uh, but, yeah, mostly it became an area of interest. And now I’m happy that I’m in an area of the law that I actually get to keep working on that. Although mostly it’s on a state by state basis.

Speaker B: Yeah, that’s an interesting part. I hadn’t thought about the all in one swoop approach versus having to play whack a mole with each and every state to try to handle this situation. So what is the current state of the law? I should say let’s talk about legal cases. When I think of these faith healing cases, which I’ve been talking about on, um, previous episodes, where states this is not a loophole. First of all, I’m sorry for going back, but this is not a loophole. This is not some sort of like, oh, I found a way to get away with this. This is not some tricky lawyer saying, my clients are not guilty of child abuse or murder or manslaughter because of this religious loophole. This is explicitly in these codes. Correct. That says it’s an affirmative defense, that if you abuse your kid, but that abuse takes the form of faith healing, that you cannot be prosecuted for a crime. Am I understanding that correctly?

Speaker D: That’s exactly right. And the kind of disgusting thing about it is that the reason that so many states have these in the first place is that the federal government in the 70s actually strong armed the states and more or less forced them to do this. So in the same way that, uh, a lot of people know that the federal government forced states to raise the, uh, drinking age to 21 by conditioning highway funds on it. Right. They said, if you want these highway funds, you have to raise your drinking age to 21. So all the states did it, and they did a similar thing where they said, we have this funding that we’ll give to each state, but we’re only going to give it to you if you include a faith healing exemption to your medical neglect statutes. So all the states did it, of course, and then later in the federal government actually got rid of that. So then some states got rid of their faith healing exemptions, but others didn’t. So the ones that we still see on the books are just kind of leftover ones that are hanging on. But it’s a tremendous uphill battle to try to convince lawmakers in those states to get rid of them because it’s seen as being antireligious, which is just a political non starter.

Speaker B: Absolutely. And it’s another great example of inertia, at least the federal level. And most states are built around gridlock that once something’s there, once you just get that moment where you can put something in, it’s going to be there a long time because it takes so much effort to do away with this. As you said, this was back in the this started bit of trivia for my listeners. I’ve alluded to this on previous episodes, but the documentation I’ve read says that the way this came about was that Mondale passed his Child Abuse Prevention and Treatment Acts CaPTA back in 74. And a side note, this is one of my favorite quotes. Nixon’s president and he signs the law, and Mondale says, what do you know? Even Nixon is against child abuse. That’s a great quote. So the nation comes together to do this, and then Nixon has halderman and forget who the other person was. But two Christian Scientists are in in his administration. And what I found in various books were claims that because of the language that’s in the regulations that were promulgated under this act, they echo Christian Scientist language. So the theory is that these Christian Scientists, which there were many in the Nixon administration, used this opportunity. They knew they were going down because of Watergate, but they used this opportunity to insert that requirement. Without it, they knew they were starting to get prosecuted around the country, so they inserted this protection. Now, what I’ve done is I’ve tried to track down actual documentation that proves this. I first read about this. Dr. Paul offit wrote a book called Bad Faith. It’s all about child abuse, faith healing. It’s a really great book. And he makes this claim, but I couldn’t find any newspaper reports. So I actually wrote him and said, hey, I’m trying to find any sort of memos or emails or evidence or newspaper reports. And he directed me to the famous book that I love. It’s called God versus the Gavel by, uh, Marcy Hamilton. It’s the book that sort of got me into this space of church and religion. And she goes into great lengths writing about faith healing as one of the aspects that is affected. So I’ve written her. I haven’t heard back from her yet, but so far I can’t find evidence of it. But when you do read Christian Science, uh, language, they talk about practitioners and treatments in Christian Science, and that’s the language that you see here. So that’s a long winded way for me to lead up to a question that I don’t know if you’ve had any experience, but have you seen any evidence that that story I don’t know if it’s urban legend or apocryphal or if it’s actually true, it seems to make sense. Have you done any research on that? Do you know if that’s where this came from?

Speaker D: I unfortunately have not. I don’t know for sure. I’m very interested in it. Would love to look into it. And Marcy Hamilton is a superstar, by the way. So you mentioned Kab versus the gavel. It is a great book, and, uh, she’s the right person to ask. Um, but maybe we can get an intern digging into question.

Speaker B: If true, it’s further evidence that your elected officials will do what they can to further their agenda when they have power. Even if it’s waning away, they’re going to try to get it in there. So we are left because of that, with the situation you described, where 30 plus states have these exemptions that they’ve not quite gotten rid of because of something that happened back in the Nixon administration.

Speaker D: That’s right. And some of them, I know, do specifically mention Christian Science practitioners by name. So it seems very plausible, uh, the situation you described, and certainly in practice, um, that’s who is kind of relying on these exemptions oftentimes.

Speaker B: So the form of these is an exemption. The form is, hey, you’re going to be guilty of this crime if you do these acts, but if you do them with this mental state, you’re not guilty of the crime. So it’s an exemption because of your religion. Does your foundation have any sort of position on religiously motivated exemptions? Because this is not the only space where you see that that you’re exempted from an otherwise enforceable law because of your religious beliefs. Do you have a position on that specifically?

Speaker D: We, uh, do. So generally, we support the Supreme Court’s free exercise rule in employment Division versus Smith, uh, which is actually an Antonin Scalia, uh, opinion, if you can believe it. But, um, the idea some good ones sometimes, right? Yes. And, ah, he’s a good writer, just usually got things wrong. Um, the idea is that so long as a rule is neutral and generally applicable, no one should be entitled to a religious exemption. Um, there are limited circumstances where religious, uh, accommodations could be acceptable, so long as they don’t hurt anyone and they don’t frustrate the purpose of the law. But in that case, the accommodation should be made available equally to everyone. You shouldn’t have situations, uh, like this where you’re favoring, uh, one particular denomination, like Christian Science. But besides that, of course, this is not a religious accommodation. Um, this is not I mean, it’s putting it very mildly to say this is causing harm to people. This is literally killing children.

Speaker B: Right? Yeah. It’s definitely in that same space of, uh, strict scrutiny that if you’re going to be reviewed under strict scrutiny, you have to do the minimally invasive thing to achieve your legitimate goal. And so what you’re saying here is, in those sorts of cases where there are these exemptions, you have to provide the least the accommodation to everybody. If you can accommodate the behavior, regardless of what religion you believe, then just accommodate the behavior. Don’t make it based on religion only. Am I understanding that correctly?

Speaker D: Yes, that’s right. And uh, if there’s a rule that has no need for a religious exception, there shouldn’t be an ability to come in and say, hey, my religion says this, so I don’t want this law to apply to me. If the speed limit says 45 and someone comes in and says, well, my branch of Christianity says I have to drive 70, they should not get in the door of the courthouse. Right. That should not be argument. You should even remotely consider, now that.

Speaker B: You mentioned it, this was another thing that sort of got me passionate back when I was sort of finding my atheism with this particular issue. I remember generally growing up thinking, why are there laws that people can be exempted from? Like, if the law needs to be a law, it should apply to everybody. If some people don’t have to follow it, then nobody should have to follow it. Shouldn’t the principle of liberty say that we don’t have to follow these? So, um, I’m with you on that one. I’m glad that freedom, uh, from Religion Foundation is active in that space. I guess, to sort of protect us from I guess you could have exemptions that turn into the rule, so to speak. Right. That exemptions could be abused if politicians, especially at the state or local level or flying under the radar, start creating exemptions that give you some extra power. Because I’m sure they could phrase it that way. I’m sure you guys would be all over that.

Speaker D: Absolutely. And we’ve seen this with the pushback to the Employment Division v Smith case was the Religious Freedom Restoration Act. Mhm this tried to go back by force to the old way of doing things, which is this approach where courts say if you are burdening someone’s religious beliefs, you have to make it over the strict scrutiny hump to show that the law why you haven’t given them an accommodation. So it’s flipping it on its head, it’s doing it the exact opposite way. And uh, FFRF, to their credit, long before I was here, opposed RIfra from the get go, whereas, uh, it had bipartisan broad support initially. But what we’ve seen it grow into now is what you were just describing, where people are abusing it and using RIfra, both the federal RIfra and also various state Rifras, to justify things like discrimination, where they’re saying, well, this civil rights law, this antidiscrimination law violates my sincerely held religious beliefs and therefore you have to give me an exemption. I have to be allowed to discriminate. And, um, that’s just not the way that our laws should work. Because, as you said, if it’s not a big deal to carve out this exemption from a law, then why do you have this law in the first place? If it’s an important law, and if the underlying purpose is sufficiently important to put it into place, then it should apply to everybody. There’s no need to carve out this religious exemption.

Speaker B: Right. It’s neither important nor essential by definition, if you’re letting people not, uh, follow it. Because if everybody claims that exemption, then nobody has to follow it.

Speaker D: Exactly.

Speaker B: Yeah. All right, well, uh, getting back to your work on faith healing, what are the issues that typically come up? I’ve identified three. Uh, maybe you’ve seen more. I see First Amendment, obviously. I see parental rights versus children’s rights, and I see equal protection. Are those generally the areas where this battle is fought?

Speaker D: Yeah, I think that’s right. I mean, unfortunately, the practical reality of these laws is that these are a matter of policy that so long as these statutes are on the books, you’re going to have prosecutors who are never going to bring these cases. So we often don’t even know that this happens. There’s a case in Idaho where someone basically stumbled upon this graveyard that just had dozens upon dozens of kids under two who had died in this one religious sect, and come to find out that it’s because none of them were taking their kids to the doctor. And, uh, prosecutors couldn’t do anything about it. They looked at the case and said, well, there’s this exemption that they clearly qualify for, so our hands are tied, so no cases are brought. There’s no legal challenge. There’s nothing you can do about it other than trying to get the laws off the books. So that’s really the only practical way forward.

Speaker B: It’s funny you mentioned that. I just, for researching this, watched a documentary, I believe it’s called no Greater Law. And it’s about that exact issue, the issue you just talked about. It’s a great documentary. I recommend people follow it. It follows the followers of Christ church members in Idaho during a time where the Idaho legislative body was considering a bill to get rid of this protection. And the cameras get unbelievable access to these folks who are practicing this, and you see them as real humans, and you get to hear their justification for why they’re not giving their kids antibiotics and letting them drown on their own fluids when they get pneumonia. And it’s bizarre to watch. But you also follow the sheriff that is, of this county. It’s canyon county in Idaho, as the sheriff is just obviously frustrated. And there is a scene that just does exactly what you did. It was probably staged for the documentary, but the sheriff goes to the attorney, uh, General or the DA, or whoever it was, and the DA pulls out the law book and reads it right on camera. This law says, you should not even be bringing these cases to me to consider. There’s nothing we can do. And the rest of the documentary is all about the debate in the, uh, legislative body to say, should we get rid of this? And overwhelming it was something like 27 to eleven. Some two thirds said, no, we keep it. And everybody was citing these arguments, these First Amendment. They were talking speeches about religious, uh, freedom, parental rights, and all of those sorts of things. So I was wondering if we could go for our audience, if you have a little bit more time, if we could go into each of those arguments. The First Amendment parental rights versus children rights and equal protection and sort of educate our audience a little bit about it and see why it shouldn’t apply to these cases, why these politicians who wave the flag and talk about these issues all the time when supporting these laws are just wrong. Do you have that time?

Speaker D: Absolutely. I’d love to.

Speaker B: Great. I’m going to save the First Amendment one for the end, because I think that’s going to springboard us into a sort of closing segment where we can talk about the future that FFRF is anticipating under this new court. So let’s jump to parental rights versus children’s rights. You mentioned earlier, Scalia scalia made a very interesting dissent in a case called Troxel versus Granville, where he said, there’s no right of bringing up a child in the Constitution. There is a right to raise your to create a family and raise a child in the Declaration of Independence, but it’s not in the Constitution. So I’m not going to support any law that says the state can’t pass laws telling parents how they need to treat their kids humanely. And again, me being not the best fan of Scalia, I found myself begrudgingly agreeing with him. It’s a very scalia thing to do, to say, the words aren’t in there, so I’m not going to do it, no matter whether I might think it’s a good thing or a bad thing. So what is the state is he right? What is the state of law regarding parental rights as measured against laws that try to force parents to do certain things for their kids, be it religious or otherwise? Do you guys have a sort of, uh, a survey of that?

Speaker D: Yeah. So he’s definitely right that parental rights is not an enumerated right in the Constitution, but to take a little jaunt into legal dorkery, uh, my initial response to Scalia is something that legal scholars like to talk about, and most others don’t know that it exists, which is the 9th Amendment. And so it seems to largely refute Scalia’s argument here about unenumerated rights. Um, the 9th Amendment in the Bill of Rights says that fundamental rights are not excluded from constitutional protection just because they’re not explicitly mentioned in the Constitution.

Speaker B: M, it’s funny how Scalia and crew tend to forget about that one a lot.

Speaker D: Yes, absolutely, it’s inconvenient. And you can be a little bit sympathetic to say, well, if all the unenumerated rights are protected, how are we ever going to keep track of them? But, um, this was actually a concern of Alexander Hamilton and some other founders pointed out, and they were arguing against the Bill of Rights on exactly these grounds, which, uh, is where the 9th Amendment came from. So he said, if we start listing out rights that are protected, that actually puts limits on citizens, on we the people, because anything we don’t list is going to be lost. And the Constitution is supposed to limit the government, it’s not supposed to limit people. So this is a real danger. So what they did is they threw in the 9th Amendment to the Bill of Rights to answer that concern. And so it’s kind of tragic that it’s been lost to history this way, that it hasn’t been utilized by the Supreme Court to this day, really. Um, but we have, of course, seen other instances of unenumerated rights that do get upheld. So for instance, the word privacy is not in the Constitution, but, uh, even though that’s being eroded right now, um, that’s an unenumerated right. The right to marriage is something that relatively recently, uh, Kennedy was in support of and said this is a fundamental right that you have to marry. And so there’s certainly at least an argument that there is some level of parental rights. And there’s been certainly a string of cases you can point to where courts have recognized some degree of parental rights that have come up, but it’s fairly rare and it’s not described in such explicit terms. So it is this kind of ethereal thing, which, for purposes of the faith healing exemptions, is maybe a good thing. Uh, and the other thing to keep in mind, of course, is that just in the last couple of years, parental rights has taken on kind of a new cultural concern, because this is the language that’s being used to push everything from book bans to the don’t say Gay bill in Florida. Uh, a lot of this stuff is being billed as parental rights. So, uh, it’s something that you can support parental rights in theory, but you need to be careful about what you mean by that, because the current trend is to say that just really expansively. And so I think the faith healing exemptions are just another example of that, where they’re literally saying parental rights extends to the point where you’re literally letting your children die.

Speaker B: Yeah, absolutely. And I found myself thinking that while I was reading this scalia dissent, and to be clear, in Troxel, he was in the minority. They did find parental rights, as they have in a couple of other cases. The cases I found center on there was a case from 1923 where there was a law that you couldn’t teach your kid German, probably because of World War I, I’m guessing. And the courts that was the first one I found that said, you do have the right to teach your kid what you want to teach. That’s followed up later with some cases that have to do with sort of the industrial Revolution, where, uh, do parents have the right to pull their kids out of school early? 14 1516 the Amish do that? Traditionally, yes. The courts held after a certain age, you don’t have to send your kids to school if you’re putting them to work or for whatever reasons. And then Troxel was about a mother whose I believe the husband had passed on, and the parents of the husband wanted to visit the children, and the mother didn’t think it was a good idea. And the court said, yeah, you have the right to not have the state come in, a judge come in and order that you let your kids visit with your dead husband’s grandparents. I think I’m getting the facts right there. And that’s where the court said, yeah, you can’t let a judge do that. There is a right to control the, uh, associations with your children. So that, I think, is pretty much the extent of direct parental control. I’ve never found a case that has addressed faith healing or religious training specifically. Are you aware of any parental rights cases that have gotten anywhere, uh, on those grounds?

Speaker D: Not in those areas, no. The other area that you think of is, like, medical decisions where, uh, I don’t know that the case is off the top of my head, but it makes sense that states would want to protect the rights of parents. If you have another adult, if you have an aunt or an uncle who’s like, hey, I think this kid needs this procedure, and they pull them in, and the parent says no, it’s like, no, the parent gets to decide this. Right. And I think that it’s so non controversial with those sorts of cases that in most circumstances, you’re not going to see a court case because it’s not going to get that far.

Speaker B: Yeah, I haven’t seen any rise up to sort of the appellate level. There was a case I found, again, an Amish family. The daughter was diagnosed with cancer, and I think because they had quality of life issues, I’m not sure it was a religious thing, but they said they started chemo with her. They started following the recommended treatment of the doctors, and then they took her off saying, quality of life issues? We don’t want to do it. And the hospital, uh, filed a suit basically in place of the child asserting that, hey, this is going to kill the kid. You need to appoint us as guardians for this one question. And the court granted that. And the parents took the kid and fled the country to avoid the enforcement of that. The rumor has it they went to Mexico. The hospital staffer, I think she was the attorney for the hospital, said, well, we’re giving up. They’ve fled the company. It’s nothing we can do. And they eventually came back and even the sheriff of the town said, I’m not going to help you find these people. That sort of level of keeping people out of these sorts of decisions. So again, I’m not sure it was religious. It was more of a quality of life, but it was another sort of small case in that area.

Speaker D: Yeah. And I think that’s the if you’re trying to make the strongest possible argument in favor of these faith human exemptions, it would be some version of that where how tragic is it to be in that circumstance, to have to make that decision in the first place as a parent? And do we really, as a society want to say, oh, you chose to value your child quality of life instead of trying to prolong their life and now that you’ve made that decision, once the child has died, we’re going to consider charging you with negligent homicide. I mean, that sounds monstrous, right? So I think most people are on that side of it because the parents are doing what they legitimately think is in their kids best interest. And so there’s general support for that. So I think the question is, why is it different when that sincere belief is, well, we really think that God’s going to fix our kids. And that, I guess, where my mind goes next is to this elephant in the room that is so politically, um, unapproachable, which is just the fact that faith healing doesn’t work. This is not a real thing. And so there’s no rational justification for allowing it. If I’m a policymaker, I’m a lawmaker. I don’t care if parents sincerely believe this because we know that we can save this kid and what they’re doing will not work. It’s more akin to my mind of a parent who’s like, I believe if I let my kid on fire, it will magically cure them. It’s like, no, that doesn’t mean you get to do that because we know that actually causes harm. It does not fix them. So we are going to intervene and stop you from that. I don’t care whether you actually sincerely believe it or not.

Speaker B: I’m, ah, 100% with you on that analogy. The setting on fire. Uh, I need to, for the purposes of our audience, to clarify the types of cases we’re talking about here. We’re not talking about child has been diagnosed with. Cancer. And you have a very hard decision of a very low chance of survival if she goes through chemo versus better quality of life if she stays off. We’re talking about simple things. We’re talking about children who get diagnosed with pneumonia, and the parents refuse to give a simple course of antibiotics that is virtually risk free, that is guaranteed to save their lives. And instead, the child ends up spending weeks drowning on their own fluids until they die. We’re talking about cases there’s one case in Idaho that, uh, followers of Christ faction occult, I will call them, uh, believes in faith healing. They had a girl whose family had food poisoning, and the rest of the family recovered. She did not. And she was coughing and vomiting for three days straight, and they were doing nothing until her esophagus ruptured and she drowned to death on her own blood. And just case after case, obstructed bowels, ear infections, little things. This is not life changing medicine. These are 100%. We are going to fix this problem. If you see a doctor, these believers, and I do believe they are firm believers, are letting their kids die rather than give them basic medical treatment. And I’m with you on the just head shaking, jaw dropping. What could motivate a parent to do this?

Speaker D: Yes, they have to be true believers. I totally agree. And the other thing that we know is because I’ve heard the kind of rejoinder of people saying, well, if they really believe this, if you make it illegal, they’re just going to let their kid die anyway, and then you’re throwing them in jail. And, um, haven’t they suffered enough that their kid died? It’s not like they wanted their kid to die. But we know from when these laws are changed that generally, parents do follow the law. Parents say, will begrudgingly say, well, if this is the law, I’m going to have to do this, even though I wish I didn’t have to. And, uh, I’ll complain about it, but I’ll bring them in, and then you get to save the child. So it’s an obvious choice to me.

Speaker B: Dr. Offit writes about this in Bad Faith. He talks about the fact that when you act these laws enact these laws, especially in the Christian Science community, a lot of parents are relieved because now they have an excuse to save their kids. And so I don’t put much weight on that argument of, well, now you’ll just be throwing two people will be better off both because it’s not true and it smells of it’s not the hostage taker’s fault that they had to shoot the hostage, right. That saying we should forgive this person because they killed their kid, and we don’t want them to have two family members suffering just seems very wrong thinking to me. So let me ask you this. There’s no case out there where the Supreme Court says you have a right to kill your kid, right? Uh, I have not found any.

Speaker D: Yeah, that’s certainly right. I don’t think the court is ever going to sanction the I brought you into this world, I can bring you out of it.

Speaker B: Yeah, that’s the theory. Right?

Speaker D: Right. Exactly. And if you think that of, like, an Isaac and Abraham type of situation right. A story that many American Christians hold up as this great example of following God’s will no matter what. If a parent charged with murdering their child made the defense that they sincerely believed that God told them to do it, there’s just no way that even like a Clarence Thomas or a Sam Alito would ever seriously consider entertaining such an argument. But the question is, why should we treat reckless homicide by medical neglect any differently? Idaho lawmakers, for example, are quite literally letting parents kill their children with no legal consequences. So it’s absolutely maddening, and I think that we should be standing up and just saying that this really is the same circumstance and which should not be allowed.

Speaker B: Absolutely. It’s funny you mentioned that story of Abraham, because that’s where I keep going to in my head, because one of the things I’m researching is doing an episode on the history of children’s rights. Like, why are there no children’s rights discussed when these politicians discuss it? Mostly because the people discussing it are conservative Christians and they know that’s a losing issue. But when you read that story, Abraham’s not surprised. This was the standard of care back then. When you go and you look at the history and I don’t want to spoil my next episode, but it’s horrific. Let’s just give one example. There was a practice back then that has run for centuries called foundation sacrifices. These are babies and children up to the age of five in certain countries. This is back at the time of Jesus that would be born, placed into jars, and buried alive under the foundation of buildings to give these buildings good luck, basically to guarantee that these things would be blessed by God. Again, this sort of sacrifice concept that Abraham is not surprised by, oh, I’m supposed to kill my firstborn. Sure, no problem. And the archaeologists who unearthed this at first were like, what is going on here? Until people started putting things together and documents and figuring out what’s going on here. So for a long time, we’ve had this culture of kids being sacrificed to religion. And I think that pervades even to today’s modern culture, because that story of Abraham, you’re absolutely right. It’s held up as this great moral story when most people I talk to is like, that’s the most horrific thing. This guy was willing to do it.

Speaker D: Yeah, absolutely. It’s a fantastic point to make. And it also reminds me of just this kind of humorous point in a way that whenever I refer to Christianity as a religion based on human sacrifice, a lot of people are taken aback, like, what are you talking about? Did you forget the central story of Christianity literally about sacrifice?

Speaker B: What’s the name of the religion? Christian. Okay, got it. It is stunning that that thought still pervades to this day, but it seems to guide the philosophical standing that United States has had regarding children’s rights for a long time. We are still a very puritan country in that sense of, you’re my property. Up until the Constitution, you were legally a child was the property of their father in the colonies. Uh, it stems from the poor laws in England. There’s a whole history there, and it takes a long time till we have any discussion of children’s rights. In the mid to late 18 hundreds, it’s the first cases we start seeing where courts step in and kind of manufacture some laws using basically their common law power to say, hey, there’s this tort called false imprisonment. We’re going to use that, but we’re going to use it for child abuse, or, hey, there’s this writ of raplevin where you’re trying to get your property back. We’re going to use that theory, but the person whose property it is is the state. So we’re going to try to get the child as property back, and they’re just free willing it here to try to do good. And over time, we see gradually states start enacting laws to prevent this sort of behavior.

Speaker D: You don’t have to look back very far to see that that’s also the stance the law took with wives and with slaves.

Speaker B: Right.

Speaker D: This whole idea of white men owning other humans as property one way or the other is not this new idea. And I think it makes sense that it’s a harder kind of nut to crack when it comes to children’s rights, in a way, because after all, kids are kind of dumb, right? I have a toddler, and I don’t want a court saying that they have a right to make their own bedtime, let alone to make their own medical decisions. So I understand why it’s kind of a begrudging, difficult motion to make, but yeah, obviously long overdue in a lot of ways.

Speaker B: It’s funny you point that out, because I had that same thought. I’m a father of two as well, and, uh, they’re both teenagers now, so they get dumber. I hate to tell you, but they get dumber as they get older, so watch out. One other point about this child’s rights before we move on to other sort of issues surrounding faith healing, killing kids, one hypocritical maybe stance that I’ve noticed is in the abortion debate, the right frames the issue as one of personhood. Oftentimes that’s not their only argument, but oftentimes they’re talking about this is murder, that the fetus is a person and that person has rights. And you can’t take away the pregnancy, because keep in mind, if we terminate a pregnancy and the child doesn’t die, we call that a birth or a delivery. If they do die, we’re calling that an abortion, but they frame it as personhood. Yet when you debate them on faith healing, they don’t want to talk about children’s rights. It seems very hypocritical that they are pro child’s rights up until the moment of birth, and then all of a sudden, those rights go away.

Speaker D: Yeah, it’s absolutely right. And, uh, it’s nothing new, though. We’ve known that pro lifers were hypocrites for a long time. The religious obsession with abortion has these politicians kind of bend over backwards to save every last fetus. But as you said, m from the moment of post birth, when, uh, you have a breathing actual infant, then they’re on their own at that moment. Any government action to protect the child becomes an assault on parental rights.

Speaker B: Yeah, and under faith healing, if that child is born and having breathing difficulties, you could literally say, no, doctor, don’t do anything. Let me pray. Let me anoint them with oil and pray like I’m instructed to in the Bible. And that child suffocates to death in Idaho and a couple of other states. No prosecution. Uh, you cannot prosecute those parents for killing their child 3 seconds after they’re born.

Speaker D: Yeah. And the only concern seems to be when you try to fix that, they’re saying, well, we can’t be encroaching on the religious rights of the parents. That’s unthinkable.

Speaker B: Right. It’s jaw dropping. So does the Freedom from Religion Foundation have any positions on children’s rights? Are there any cases you do or any causes you support regarding children’s rights?

Speaker D: I don’t think that FFF has a position on child rights in a broad sense, but we certainly advocate for children having the right to be free from abuse at a minimum, including religiously motivated medical neglect. Uh, the idea of exempting anyone from abusing or neglecting a child is absurd, no matter the reason.

Speaker B: Absolutely. And it’s understandable that the whole issue of child’s rights, as we’ve just demonstrated with this conversation, is, uh, sticky. There’s a lot of gray areas, like morality. Unlike Christians, we are willing to recognize that morality is not black and white. It is gray. And it’s trying to figure it out as our species evolves and learns more about how to prevent harm and promote happiness. It’s a very sticky issue, and I recognize that. But these laws seem to be clearly on one side. So thank you for summarizing that for us and sort of guiding us through that. I had a hypothetical to run by you to illustrate my next question. So the first issue we talked about was child rights versus parents rights. Another issue that’s somewhat tangentially related. I don’t hear as much, but I did want to bring it up. And that’s a 14th amendment equal protection issue. So here’s my hypothetical. A child in Idaho has pneumonia, and doctors say the child has an extremely high chance of survival if given an antibiotic this is what I talked about earlier, and will have extremely high chance of dying if they don’t. Both parents refuse treatment. The child lives in agony for seven weeks, several weeks excuse me, drowns in their own fluid. The mother and father are both charged. The mother says, I didn’t treat the child. I didn’t let the doctor treat the child because I was worried about their quality of life, and I was worried about a possible unproven allergic reaction or something like that, while the father says, I didn’t do it because of a, uh, religious belief. In that case in Idaho, I believe the father cannot be prosecuted and the mother can. The same parents, same act of preventing treatment, one parent’s going to jail, one parent’s not. And it’s based solely on their religious belief. Is that the state of the law in Idaho?

Speaker D: That’s how I read it, yeah. It’s a special exemption that only applies if you are specifically relying on a religious justification.

Speaker B: So what does that mean under the 14th amendment? Can we make an argument there?

Speaker D: You could try. I think the way that it would play out is you would have to say that, first of all, on what grounds are you being treated differently? And the way that it would be here is you would say, well, they have this religious belief, and I have this just non religious kind of pseudoscience, let’s call it, belief. So you are favoring the religious belief over my non religious, medical related belief. And I think the problem is the way that the 14th amendment, uh, equal protection clause has been applied is the real game, and a lot of listeners will be familiar with this. The real game that happens when you’re fighting about this is what standard of review applies. So if you can get strict scrutiny, that usually means that as the person challenging, you’re going to win, the government’s going to lose almost all the time. Whereas if you get rational basis review, that’s code for the government almost always wins.

Speaker B: You can imagine a way where this might be allowed. You win, government win.

Speaker D: Exactly. And so I think that in this case, the way that courts probably would look at this is they would say, your belief in this pseudoscience version of medicine is not religion. That’s the whole problem here is that this is not a religious belief. So this is not discrimination based on a protected class, and therefore rational basis applies. And the rational basis for the medical exemption? Well, actually, probably they would say, what’s the rational basis for the prohibition against you withholding medical treatment? So that one’s even easier. But even if they flipped it the other way and said, what’s the rational basis for having a religious, uh, exemption? Still, I think that’s going to survive rational basis, as almost everything does, because they would just say, yeah, the rational basis is protecting religious liberty, and parental rights, government wins. Have fun in jail. So I think that unfortunately, that’s the way that it would come out. So you can make the argument, but it’s an uphill battle for sure.

Speaker B: And that’s so frustrating. That’s a common situation to fall in. As somebody who is secular, agnostic, atheist, whatever you may call yourself, that doesn’t have a belief in a god, that the jurisprudence treats that as a non religious position. I tend to think of it as, from a legal perspective, a religious, religious, uh, position. The famous saying is atheism is a religion. Like bald is a hair color or not collecting stamps is a hobby. But in the law sometimes you get those weird double negatives or reversals. And it seems to me that this concept that judges like to use to support staying out of things that, well, not belief in god is not a religious position, therefore the first amendment doesn’t apply, seems to be faulty somewhere. I haven’t thought a lot about it. Is that an issue that you run into?

Speaker D: It is, and we’ve thought about this, so there have been some statements in support of the idea that you’re saying where the idea is that things like the free exercise clause ought to protect non religious people just as much as it protects religious people’s belief. Because if it doesn’t, that’s a form of religious discrimination in itself and it’s a lack of equal protection. I think that is a good argument, but you have to flesh it out, and it hasn’t really been done yet. And one of the objections that you would at least have to overcome is the idea that we were talking earlier about religious exemptions. And if you’re going to say that any religious exemption that you as a non religious person don’t qualify for is an equal protection violation, you’re kind of arguing against all religious accommodations. And so it’s kind of a slippery slope argument, and maybe there’s a way to get around that. But I think that would be the initial hurdle you’d have to overcome of things. Like if someone says you’re supposed to take a driver’s license photo without a hat on. And then someone says, well, I need to wear a religious headwear. And they say, that’s fine, as long as we can see your face. And then you come in and you say, well, I want to wear a baseball cap. It’s not for religious reasons, I just want to wear it. And the DM MV says, no, take off your hat. You can try to challenge that and say, hey, if they get a religious exemption, I want an exemption because I like baseball. But I don’t think that that has had success. Maybe it hasn’t been tried enough. But usually I think the intuition of judges is to say that religious accommodations are a legitimate thing that we are going to allow if that’s what lawmakers want to do, and if it’s not hurting anybody. We’re going to allow it.

Speaker B: Yeah. Uh, that was tested a little bit. In the case of the flying spaghetti monster, pastafarian adherent who wore the, uh, colander to their driver’s license picture and was told they had to take it off. Famous case that we’re all familiar with. And I believe they won. I believe they won, if I recall correctly. So that’s what you end up with is the perfect trial situation is one where the perfect test case, I should say, is the hypothetical, I have two parents, same child. One lets them die, the other one lets them die. One asserts this defense of, I have a religious belief, and the other one stays silent. The other one doesn’t say anything, or the other one says, I actually follow a religion, which says, uh, I’m supposed to kill kids. How would that play out? So you’re never going to get that as a real test case. Parents don’t tend to marry each other where they differ that much on this treatment of kids. But maybe we’ll find it in other places where we can start pushing back against this atheism or secularism is somehow not deserving of protection.

Speaker D: Yes, and hopefully, without such horrific underlying facts, we can get the circumstances where you have two defendants with one religious, one non religious circumstance, and they are being treated differently under the law. It’s the best shot you’re going to get at, ah, equal protection claim.

Speaker B: Yeah. You got to wait for that perfect case to show up. We’re running out of time. Do you have a few more minutes to dive into the First Amendment area with respect to, uh, faith healing in children?

Speaker D: Absolutely, I’d love to.

Speaker B: Okay, so I’ll just start. Can you explain the free exercise clause to our audience?

Speaker D: Yeah, that’s a quick, easy question.

Speaker B: That’s just a three minute discussion. Right.

Speaker D: So the basic idea of the free exercise laws first of all, I guess you have to kind of dispel this idea that the, uh, framers all had a unified vision of what really anything in the Constitution meant. We all date that as if there’s, like, one line that you can unearth, and it’s like, oh, this is what they actually meant. Of course, they debated things back then, just like they do now. So it’s complicated. But the basic, uh, idea of the free exercise clause is that it’s the flip side of the establishment clause that can be the package can be summed up as state church separation, where the government is both supposed to remain secular. But the government is also supposed to stay out of the business of religion and stop people and not stop people from practicing their religion. But of course, there are limits to that. We’ve talked about a number of those where if someone’s religious exercise is harming others, when you’re talking about that sort of religious conduct, of course the government can come in and say, you have to follow neutral laws. So that goes back to this case of Employment Division versus Smith. The Scalia case I mentioned earlier, which is the current state of the Free Exercise Clause, is that if you have a neutral, generally applicable law, the Free Exercise Clause does not give you an exception to it. But the cases following that have clarified that where you do get free exercise clause protections are if you can show a court that your religious exercise is being targeted by the law. If what the government is really doing is trying to stop you from practicing your religion, then the free exercise clause comes to the rescue and will stop it. So if you’re a government and you’re saying we are prohibiting people from eating wafers on Sunday morning, a Catholic church is going to come in and say, hey, this is clearly targeted us. And especially if there’s some legislative history that says, let’s get these Catholic masses out of here, that’s going to get struck down under the free exercise clause.

Speaker B: Right. Unless we have facts that say there is a plague upon us and the wafers eating wafers turns you into a zombie and you’re going to get somebody. But maybe, uh, our recent experience with COVID says that maybe people won’t do anything about that, but you need a non religious, legitimate purpose, and even then, you still might end up in strict scrutiny. Land right. Forbidding wafers. There may be a less intrusive way to solve the zombie problem than forbidding the consumption of wafers.

Speaker D: So if RIfra applies, then yes, but otherwise, strict scrutiny would only apply if they can meet that initial burden from a case called Lukumius saying what’s actually going on here is targeting religion. So in that case, and this is a real case that was about the Santoria religion, they were sacrificing animals. People were outraged at this, and they said, we’ve got to put a stop to this. So there’s all this legislative history about saying, how do we stop the Santoria from sacrificing animals? We hate this religious practice. I know we’ll pass a law against killing animals, and then they exempted veterinarians and they exempted farm animals. And so the court looked at that and said, no, what you’re doing is stopping a religious practice. So that’s what kicks in strict scrutiny. But that’s the level that you are supposed to have to meet in order to hit strict scrutiny. Otherwise it should be rational basis. Review the wafer.

Speaker B: Ban the zombie wafers.

Speaker D: Yeah, if you got a zombie problem that, uh, comes from wafers, the Catholics coming in and saying, hey, this happens to interfere with Mass, that shouldn’t matter.

Speaker B: Right. And that actually supports my reading of Jefferson and Madison. So going way back preconstitution we had an issue where Virginia proposed and this goes back to cases we were talking about earlier the state of Virginia legislature at the time was a colony proposed a law that was the hiring of Christian teachers, public school teachers that would teach Christianity. And people like Jefferson and Madison, founders and vocal advocates of the First Amendment, later rose up against this. Madison wrote a big document that was circulated and signed by everybody, and Jefferson reintroduced this bill he had written years ago called the religious liberty act. I think it was something along those lines for Virginia. And in their writing about this, they talk about the difference between a state regulating an act versus a state regulating your belief or your ability to profess your belief. And they come down heavily on the side in my reading that. Yeah, the state’s well within its rights to ban the consumption of wafers if they’ve got a legit reason. The cases that have come out about this are things like the jehovah’s witnesses. They had a case where they were having their kids distribute literature I think it was Connecticut or somewhere in new England where they passed a law about child labor that said, we don’t want kids doing certain things at certain times a day or for certain durations. And the jehovah’s witnesses objected, saying, hey, it’s part of my religious belief to do this. And the court said, no, get out of here. We can regulate child behavior. I’m sorry that your practice makes you believe that you have to do this. You can still believe that you should do this, and you could still say that you should be allowed to do this, and you can still hold elections and sponsor politicians who will try to repeal this law. That’s where the state can interfere. But, yes, we can say that kids can’t be working 14 hours a day.

Speaker D: That’s right.

Speaker B: Is that your reading of the founders, at least for Jefferson and Madison?

Speaker D: Definitely, yeah. There’s no question with Jefferson and Madison, who are of course madison was the primary author of the first amendment, and Jefferson tremendously influential in it. And he also coined the term separation of church and state in explaining the first amendment so tremendously influential, and without a doubt, those two that is where they were on it. The usual counterargument is people will say if you’re being a textualist. It doesn’t say prohibiting the free belief of religion. It says the free exercise of religion. So that supposed to be about conduct, not about belief, but it’s about conduct that is practicing just your religion. If that’s all that the government is prohibiting, then you get into a problem. But, yeah, it obviously must be the case that the government can regulate conduct for a good reason, even if it incidentally burdens religious conduct. And, um, this goes all the way back to the case in the 1870s. I believe Reynolds is the first time m the Supreme Court really kind of fleshed this out. And this is the first time they used the phrase separation of church and state as well, where it was a polygamist from Utah. And the background was Utah wanted to become a state. But this is a sticking point as they wanted to allow polygamy. And so he was trying to make the defendant there was trying to make the argument that I should have a free exercise right to practice polygamy, because, okay, you have this ban on the practice, but I want to do it for religious purposes. So doesn’t the first amendment let me do it? And the supreme court even back then, said, no, that can’t possibly be right, because then everybody gets to be a law unto themselves. So it comes back to, I have a religion that says I don’t have to pay taxes and I don’t have to follow speeding laws, and I don’t have to do anything else I don’t want to do, and that’s just not workable. So of course it has to be right that the government can regulate conduct. So that’s where the line should be. If you can show that the government is actually targeting a religious practice and has no good reason for doing it, then that’s different. That’s where you’re going to get strict scrutiny and the government’s going to lose. But barring that, the government can regulate conduct. That has to be the right interpretation.

Speaker B: Absolutely. In fact, that Reynolds case is where I first learned about the history. I just sort of dictated about Jefferson and Madison, about the hiring of Christian teachers. The court in Reynolds goes to great length to narrate that history, to say, listen, this is what people were thinking even before the constitution came around, that of course you can regulate actions. The line is that beliefs and professions. So maybe the counter, counterargument for the free exercise argument is, yes, it says exercise, not belief. But at the time, the founders were thinking that exercise meant speaking and believing, not giving medicine to your kids or forcing them to work handing out literature or marrying a bunch of people at the same time.

Speaker D: Absolutely. And I used to speak regularly to high school students, kind of do know your rights and introduction to the bill of rights type thing. And one thing I would always tell them is that the only protection in the first amendment that is absolute is freedom of thought. So you have a right to freedom of speech. There are certain limitations. You have a right to freely exercise your religion. There’s certain limitations. All the other rights, they do. The only thing you have, though, is freedom of thought. There’s not going to be a spot where the first amendment is going to allow the government to come in and say, if you believe ABC, you have violated the law. Which is a good thing, of course, because that’s not so abstract. Things like heresy blasphemy, these are basically thought crimes that are still prevalent around the world and, um, still exist in some state constitutions and state laws as well. They’re just not enforceable, thanks to. The First Amendment.

Speaker B: Yeah. People may not know this, our listeners may be unfamiliar with this, but regularly people are executed around the world for blasphemy laws. We have people who have appeared on atheist call in shows as hosts, who have to use anonymous names, uh, because they come from the Middle East. And if they were found out, they might be arrested, imprisoned, or even, uh, killed. It happens in Southeast Asia quite frequently. And, uh, we just had Salman Rushdie, who was attacked to this day for doing something that was blasphemous against his religion back in the 80s. He wrote a book called The Satanic Verses side Story. That’s right. After I graduated high school, I was working at a little thing called a bookstore. We don’t have them anymore, but Walden Books in the mall, and we got training at that time. Hey, there’s this book here’s. How to Handle Terrorist Threats. This is back in 1989. Two somewhere in that range when I was working in the bookstore, and it was my first exposure to, wow, people really like you said, people really believe this stuff. And so for that’s, 40 years later, he gets attacked when giving a speech in New York and is blind in one eye now and wounded, all because people find the idea the idea that they might be wrong to be blasphemous and should be punished. And that’s where Madison and Jefferson and everybody were. The government should not be in that business. You can’t control your thoughts. You should be able to profess ideas. You should be able to, uh, believe what you want and say what you want.

Speaker D: Absolutely. And we should all be coming together and protecting each other’s. Freedom of speech and freedom of belief, even if you no matter how much you disagree with that, if someone wants to come on and defend faith healing, it’s one of these things where I will vehemently disagree with them, and I will also vehemently fight for the right to make that argument.

Speaker B: Often it is the case that it’s the atheists that are protecting everybody else because they’re the neutral party in the fight. They can protect everybody. One last question about First Amendment. We had the Bremerton case, the coach praying last year that did away with something called the Lemon test. Everybody in constitutional law is holding their breath at this point to see what does this mean? Because case after case after case that are First Amendment cases have been decided under the Lemon test. So is it true, as Sotomayor says in her dissent, that Lemon is no longer good law? And what do you think is the trajectory now? What’s going to happen in this court? What test are they going to use? What methods are they going to use under those tests, and what cases might fall because of this?

Speaker D: Yeah, I think there is no doubt that you’re not going to see the Supreme Court applying Lemon ever again, I think that that particular test is gone. The good news is they didn’t overturn the case of Lemon, right? They didn’t actually say, Lemon v. Kurtzman is overturned, not that it’s bad law. And also lemon. It’s important to understand that case didn’t just invent a test out of whole cloth. What they did is they were looking at all of the cases leading up to Lemon in 71, and they said, let’s try to boil this down into a few general principles. So what we still have are these pre Lemon cases that led to the Lemon test. And we can still point to those and say that that is still good law. But what’s concerning is all the cases since 1971 that have applied the Lemon test are now a jump ball. So this is why we see things like in Texas with the Ten Commandments bill, this was settled in Stone v. Graham in 1980, and they’re saying, hey, we got another bite at this apple. Lemon doesn’t apply. So Stone v. Graham is not at least it’s at least not the right analysis anymore. So we have to relitigate all of these old cases, especially involving public schools, um, but also involving funding of religion and various other issues. The test that the court has said they’re going to apply in cases like Bremerton is a history and tradition test, right?

Speaker B: Yeah. Please do talk about this, because this is a favorite of mine.

Speaker D: Yeah. So as someone in the field, I have no idea what the hell that means. Um, it is a huge mystery. We had a case also in Texas about courtroom prayer where the court wanted to know the history, um, of the practice. And this makes sense even before Bremerton, because with legislative prayer, this is where they first started using this idea, where, like, well, there’s a long history of legislative prayer, so we’re going to allow the practice even though it blatantly violates the Lemon test in that case. And so here we’re talking about a judge in Texas who opened his sessions with prayer. And so what we had to do was to look up the history of courtroom prayer. So it seems like that’s one possible way is maybe you have to bring in expert witnesses and establish, as a matter of fact, uh, for the factual record, what is the history of this particular practice. But there’s several major problems with that in practice. And one is that history is a messy thing, and it’s very easy to interpret it the way that you want to. So I think that this test is going to open the door for the Supreme Court to rule any way they want to, because they’re going to have lawyers on both sides who are cherry picking history and saying, here’s why the history and tradition clearly favors this result. The other says the exact opposite. And the court just goes with the side they want to win. So this is not, uh, workable. And for lower courts, it gives them virtually no guidance. They’re not historians. They have to just dive into these historical practices. And it has this huge, hairy question of what scope do you use when you’re talking about the history and tradition of things like prayer practices in public schools? Well, there weren’t any public schools when the Establishment Clause was enacted, so what are you supposed to look at? And so you have to try to analogize to things. It’s just a giant mess. So until we get some more cases, we’re not really going to know what there is to go off of. So all we have for now is we have these preleming cases, we have principles since then. And then when it comes down to it, we’re going to have to just point to things like Jefferson and Madison, make the argument and hope that we get reasonable judges who understand the basic principles of the importance of a secular government. But, uh, it’s a scary time to be litigating state church cases because we don’t know what’s going on.

Speaker B: I just made a facial expression when you said scary because my very next question was, how scared should we be? Pretty scared for the layman who is listening to this, maybe, and has stuck with us. Thank you. How bad could it get? The reason it’s so popular with me, uh, that I like this historical test that they’re talking about is because it’s this big cloud of nothingness. It’s this big cloud of Rorschark test of religious jurisprudence. And it seems to indicate if we’ve always done it, we’ll just keep doing it. That seems to be one take of what’s going on there. But like you said, it could be anything with this court and possible future courts, depending on what happens in the next 20 years. Are the doors wide open? Let’s put it this way. Are you still going to take the elements of the Lemon test when you file briefs and sort of think of it in those structures, like, is there a secular purpose? How entangled are you going to be? Or is the court not even going to care about those factors? They’re just going to say, well, there’s always been a cross on this public school for 50 years, so why take it down now?

Speaker D: I think that any reference to the Lemon test or those three factors, the three, um, prongs of the Lemon test, is going to be toxic. You’re just going to be running into a brick wall of them saying, lemon is no longer good law, whatever. I think as litigators, you have to avoid that. So you instead analogize to specific cases and make the broader points. You don’t talk about secular purpose. You talk about whether the government is promoting religion. Right. So you just do your language carefully to talk about it, um, in broader terms. But, uh, the practical reality of it, and I hate to be kind of I feel like this is a cynical take, but if you look at the center of the Supreme Court right now, um, people like Kavanaugh and Roberts, where do they want the law to be? And they are, of course, just to clarify, they are not centrists by any stretch. Sadly, they’re the closest, uh, thing we have to swing votes right now. I think there’s a pretty strong indication that they would like the Establishment Clause to be limited to actual coercion. And so that is a level that if they can get it there, I wouldn’t be shocked if they would take it that far, where they would say, if you have a state or a school that’s actually requiring kids to pray, we will draw the line there. That’s going to be the discussion that they want to have is what qualifies as coercion? What’s the definition of that? Um, but if all it is is something like a cross on the outside of public property, they’re going to say, not only is this not an Establishment Clause violation, but also we’re probably not even going to let you have standing because they’ve taken issue with what they like to call offended observer standing, right? Things like public displays of religious iconography. They’re going to say, nobody has the right to challenge this in court. You don’t even get in the courtroom door. We don’t want to hear it. That’s the first way out. And then if you do get there, then they’re going to dive into the tradition and find some sort of justification to keep it up. So I think that religious display cases are headed in a really bad direction. And then the cases of public funding and prayer in public schools, they’re going to get worse before they get better. And I am afraid that that’s the worst case scenario where I could see them drawing the line is actual coercion.

Speaker B: So for older cases, Christian prayer over the loudspeaker during class, Ten Commandments on the wall, teachers giving lessons about the Bible and how it is the only true religion that you are allowed to opt out of, all of these are on the table, it sounds like.

Speaker D: I think, sadly, that’s the case. I mean, we will be fighting it every inch of the way and there’s at least hope, right? So what I was just describing, that’s kind of the apocalyptic worst case, right? I think that there is a chance because the people on the Supreme Court, as much as we disagree with them, they’re not idiots. And so they do understand things. Like when you’re in the minority and you’re a child, uh, in a public school and you have a prayer over the loudspeaker, of course that’s coercive, right? That’s massively coercive. So even if they’re viewing it from that perspective, I think there’s a good chance that we would be able to win over five votes on a lot of those cases. Uh, but it’s going to be a battle. And there are definitely a couple of elements on the supreme Court that are worse than that. So they’re just a cause. So I don’t think we’re going to see unanimous decisions in favor of state church separation anytime soon.

Speaker B: Wow. The fact that you have to scramble for five in that sort of case instead of, uh, a unanimous court like we had in Brown versus board of education is sad. It’s a sad state of affairs for people who are interested in keeping government out of religion. It really is. But on a bright note, something just came across the wire today. Roberts and Gorsuch, I believe, sided with the liberal side of the court and held that, uh, is it Georgia or Alabama? I think it’s Alabama. Alabama needs to redraw their districting lines because they were discriminating. They had a discriminative effect against black people in the state. Uh, I don’t know if you’ve seen this or not.

Speaker D: I did. I mean, I just saw the kind of headline I haven’t read the case, but I know that this was kind of shocking because of everything I was just saying that people that make up of this court and they say, oh, man, we’re completely screwed. But then occasionally reason prevails.

Speaker B: Right? Yeah, I saw I had the same effect. I did read the syllabus real quickly just to get through it, and I didn’t process it very much. It’s not my forte. But there are people who can have the skills to convince the supreme Court to move to the left when needed. And, uh, you guys, freedom from Religion Foundation have those skills. You certainly have those skills. I’m really, really thankful we were able to engage in this discussion. I really appreciate your time. We are over time. So I wanted to wrap it up, but first I wanted to ask you two more questions. Do you have any other last thoughts you want to get out, uh, about the state of these issues? And then how can people support the Freedom from Religion foundation?

Speaker D: So the way you can support the Freedom from Religion foundation? There’s a couple of ways. You can go to our website, which is ffrf.org. Follow us on social media. If you have the means to support us, you can become a member, which that’s as inexpensive as $40 a year to become a basic member. And you get a bunch of stuff you’d be, uh, signing up for if you want it. And then also, we have a new C, uh, four we’re excited about called the Fffrfaction fund. So you can go to fffaction.org. So this is a new lobbying arm that we have created. So I’m very active in that we’re excited about that opens some new avenues for us. So something else you can check out. And again, follow us on social media.

Speaker B: Excellent.

Speaker D: Don’t really have anything else to add to the substance of it. I think we’ve covered the ground.

Speaker B: We really have. Ryan, I cannot thank you enough. It has been the thrill of my life to talk to somebody like you who is whispering in the ear of the Supreme Court, and I hope that my listeners have gotten as much enjoyment and education as I have. I really do. Thank you for your time.

Speaker D: Well, I thank you. Your podcast is new, but it is fantastic, and you have won me over as an, uh, immediate diehard listener. So keep up the great work, and thank you so much for having me.

Speaker B: Thank you so much. And there you have it.

Speaker A: That’s my interview with Ryan Jane of the Freedom from Religion Foundation. Again, I cannot thank everybody enough for participating. Ryan was extremely generous with his time. Please go and donate@ffrf.org and help keep religion out of our government. And keep government out of our religion. Thanks for listening. I’ll see you again soon.

Speaker C: This has been the Cross examiner podcast, the Internet’s courtroom in the case of Rationality versus religion. If you enjoyed this podcast, please consider subscribing. See you soon.