On June 16, 2021, The Federalist Society's Religious Liberties Practice Group hosted a teleforum titled "Talks with Authors: Religious Liberty in Crisis."
In his new book Religious Liberty in Crisis: Exercising Your Faith in an Age of Uncertainty, former U.S. Solicitor General Ken Starr explores the contemporary relationship between government, constitutional law, and religious freedom. Judge Starr is joined by Professor Robert P. George, Princeton's McCormick Professor of Jurisprudence, to discuss the book and related matters.
- Hon. Kenneth W. Starr, U.S. Court of Appeals, District of Columbia Circuit (1983-1989); U.S. Solicitor General (1989-1993)
- Moderator: Prof. Robert P. George, McCormick Professor of Jurisprudence; Director, James Madison Program, Princeton University
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.
Nick Marr: Welcome, everyone, to this special Federalist Society virtual event, as this afternoon, June 16, 2021, we're having a special event on Talks with Authors, a new book titled Religious Liberty in Crisis: Exercising Your Faith in an Age of Uncertainty. I'm Nick Marr, Assistant Director of Practice Groups here at The Federalist Society. As always, please note that expressions of opinion on our call today are those of our experts.
We're very pleased to be joined by two distinguished experts in this field, and I'm just going to introduce our moderator. He'll take it from there. And before I do, a quick note for our audience. We will be looking to you for questions towards the end, so please submit those via the chat, and we'll take them as we can.
With that, we're very pleased to be joined this afternoon by Professor Robert P. George. He's the McCormick Professor of Jurisprudence and the Director of the James Madison Program at Princeton University. His much longer biography can be found on our website, so take a look at that if you'd like to look at his books and things of that nature.
With that, Professor George, thanks very much for being with us. I'll hand the floor to you.
Prof. Robert George: Thanks, Nicholas. It's a pleasure to be with you all today. And before introducing our distinguished guest, I just want to say how grateful I am for the work of The Federalist Society. The Federalist Society has made an enormous difference for the good in American legal culture. It's made an enormous difference in our law schools. It's made an enormous difference on the federal bench. It's made an enormous difference in American life. And I'm proud of my own long association with The Federalist Society. And I just want to wish everyone connected with The Federalist Society, especially the leadership team there in Washington, all the best going forward.
Now, I have the privilege of introducing an old and dear friend. We go all the way back to the middle ages to about 1988 when we first met each other in Washington, D.C. I was an applicant at that time for a judicial fellowship which I ended up getting at the Supreme Court of the United States. And Judge Starr wasn't, I guess, quite then Judge Starr. Oh yes, he was Judge Starr. That's right, at that point, he still was Judge Starr. He was on the selection committee, and I didn't even have to pay him, and I got the fellowship. So I don't know how that worked, but Ken and I have been friends ever since then, and I treasure our friendship, as well as my friendship with his wonderful wife Alice and the kids.
Ken Starr was born in Texas, born in Vernon, and then brought up in Centerville, Texas. His dad was a minister of the Churches of Christ. After initially attending Harding University in Arkansas, he moved to George Washington University in Washington, D.C. After completing his bachelor's degree there, he went on for a master's degree at Brown University, and then earned his law degree at Duke University.
He clerked for David Dyer on the U.S. Court of Appeals for the Fifth Circuit, and then up to the Supreme Court where he clerked for the Chief Justice at the time, Warren Earl Burger. He then became a lawyer with the distinguished firm of Gibson, Dunn & Crutcher.
But before very long, at the tender age, if I've done the arithmetic right, Ken, it's 37, you were 37, when he was nominated and confirmed as a U.S. Court of Appeals judge himself. But after a few years at that, he was called to be Solicitor General of the United States, and then became famous and controversial, of course, later as the Independent Counsel in the Whitewater investigation and the Lewinsky matter.
He also has been a distinguished academic, holding a chair in constitutional law at Baylor University, and also being president and chancellor of that very distinguished institution. He was also dean of the law school at Pepperdine University.
Ken, welcome and thank you. And congratulations on your new book which we're going to discuss, Religious Liberty in Crisis, a topic dear to your heart, dear to my heart, and one of critical importance to Americans today. So why don't I just invite you to open us by saying hi to the folks out there.
Hon. Kenneth Starr: Well, hi to the folks out there, and Robbie, thank you, Professor George. We're so proud of you, the McCormick Chair of Jurisprudence, as Nicholas rightly said, and one of only a handful of persons in history to hold that very distinguished chair. And I think everyone does know that Robbie is not only a juris doctor, he's a real doctor as well from Oxford, and a real lawyer, for the lawyers out there.
Prof. Robert George: You don't have to introduce me back. Just because I introduced you, you don't have to introduce me.
Hon. Kenneth Starr: But people need to know these things, don't they? How good of you to agree to do this and to have a conversation about an important subject.
Prof. Robert George: Well, it is a very important subject, but it's always been an important subject, hasn't it been? Our founding fathers, the founding generation were very concerned about religious liberty. Of course, there is a crucial provision of the First Amendment. The very first words of the First Amendment to our Constitution are "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."
But even before the addition of that amendment, which was, after all, an amendment, which means it wasn't in the original Constitution, we had the question of religion and religious freedom addressed in the Constitution in the clause forbidding religious tests for public office. In this new country, this new republic, the United States of America, there would be no religious tests. It's written into the Constitution. No religious tests for public office. Ken, why did they do that? Why did they think it was so important to address that in the Constitution?
Hon. Kenneth Starr: It was a great liberal manifestation of an enlightened attitude toward human dignity, human individuality. Recall the context in the 18th century. Not only was the mother country from which we had recently separated the home of an established church, the Church of England, but so too, even at that time, there were many established churches in the several states. And Massachusetts, as you know, was the last to disestablish in 1833. Now it's a soft establishment. As the years went on, it was a gradual process.
But to those who gathered in Philadelphia, it was very important for the national government, for the federal government, in no way to intrude into this beautiful thing called freedom of conscience. And so the no religious test is so powerful an indication of the latitudinarian approach of the founding generation to leave their particular denominational ties, or no ties at all, to organized faith, and to say, "No. In here, it's e pluribus unum, 'out of many, one,' and we're simply not going to intrude into that," which is one of the really great enduring principles of religious liberty, and that's freedom of conscience.
And then, to its credit, the Supreme Court of the United States in the fullness of time incorporated that in a case coming out of Maryland where there was a requirement that an office holder in Maryland attest to his or her belief in God, Torcaso v. Watkins, for those taking notes. And the Supreme Court held no, that's just not who we are. We know who we are in America. And at least until very recently, the idea of freedom of conscience has been one of those that in a secular sense is sacrosanct, embodied in our law, embodied in our culture, allow these different kinds of denominational, nondenominational, including those who are atheists.
And by the way, a final point on this, General Washington gave beautiful expression to this kind of very open-ended and welcoming, as we say in Texas, "Y'all come," kind of attitude in his private letters. He wrote time and time again about the importance of what is called toleration, but it was beyond that. It was a vindication of human dignity, the individual idea of I get to define my own sense of faith and values.
Prof. Robert George: Ken, since you brought up Washington and his attitude on these issues, let me just invite any of our listeners and viewers who have not read President Washington's letter to the Jewish community of Newport, Rhode Island, to get online, use your search engine, and look up Washington's letter, Washington's letter to the Jewish community in Rhode Island, in Newport, Rhode Island.
Ken, as you know, you'll recall, Washington is responding to a letter of congratulation from the Jewish community, and they had requested tolerance toward them. They hoped that this would be a liberal, in the old-fashioned sense, neutral society that would show tolerance toward everybody, including toward the Jewish community which, of course, had suffered so much persecution in Europe.
And Washington wrote back and said so interestingly, "You ask for tolerance. We no longer speak of tolerance. You're not here on anybody's sufferance. You're full citizens. All Americans are full citizens." Of course, that wasn't quite true because of slavery, the sin of slavery. Washington himself was a slave owner, didn't manumit his slaves until after his death, manumitted in his will. But, nevertheless, he made the profoundly important point that it's not tolerance. You get full citizenship, every bit as much as the Protestants, who, of course, were the overwhelming majority in those days.
And Washington said, "All that we ask of any citizen, including the Jewish citizen, is to demean yourselves as good citizens and be prepared to serve the country when the country needs you." And that was it, and what a radical thing that was. Compare that with Old Europe and the treatment of Jews in Old Europe.
Hon. Kenneth Starr: He even said in that letter, "No sanction for bigotry." So he made a cultural point as well as a legal and constitutional point as the nation's chief magistrate, there should be no sufferance or toleration of an idea of bigotry—obviously, when you say what happened to freedom of conscience—but that was his vision, a soaring vision of a unified people, notwithstanding a great diversity at the time.
And of course, they were looking down the corridors of time when they wrote in the preamble, "to secure the blessings of liberty." They used the term "blessing," which has a real theological meaning, is not typically used in more secular terminology, "the blessings of liberty to ourselves and our posterity."
So Washington was, yes, a slaveholder, and so there it is. It just is what it is. But he nonetheless had the right principle, and the right principle as applied, of course, even going back to America's original Constitution looked ahead and saw the end of the slave trade. So I must say, I'm getting a bit far afield, but the 1619 Project is so conceived of fundamental error that this country is somehow founded upon white privilege and exploitation and so forth.
And let's go back to Lexington and Concord and the -- there were slaves in the colony of Massachusetts at that time. But my word, that's not what Massachusetts was doing, what Samuel Adams was doing. He wasn't brewing beer, and he wasn't defending slavery. He was defending liberty, and that is the principle that is in our Constitution also, obviously is given such mighty expression in the First Amendment.
Prof. Robert George: It seems to me, Ken, that what is central, and we mustn't deny our history, but what is central is the set of principles on which the country was founded and to which we officially subscribe. Are those good principles or bad principles? I say they are good principles, the best principles.
And just think of it this way. I ask my students to think of it this way. Have we ever castigated ourselves, have we ever had reason to reproach ourselves for being too faithful to those principles, the principles of the Declaration and the Constitution? No. These sins and failures that everyone wants to talk so much about today and widely recognize, those sins and failures have always been times when we have been unfaithful to the principles of the Declaration and the Constitution. We should be proud of the times we were faithful. Where we should be ashamed is where we were unfaithful.
Hon. Kenneth Starr: Of course, we inherited, as it were, culturally, the scourge of slavery which existed in Great Britain, the slave trade. And I hope everyone is aware of the great movement, great in the sense of large and important, in Parliament that took decades to eradicate the slave trade, which much of British wealth was derived, was dependent.
So this is in the scriptural sense, let the culture who is without sin cast the first stone. It was just this terrible, ubiquitous human condition, which unfortunately exists to this very day. The Supreme Court of the United States right now has a case involving—I’m just going to put it bluntly—corporate America using child slave labor in Africa. It's happening today, and they've admitted it.
Prof. Robert George: That's absolutely true.
Hon. Kenneth Starr: Let's turn our backs on that kind and say no, this is just inimical to who we are as human beings.
Prof. Robert George: Exactly right.
Hon. Kenneth Starr: It does not belong in the country which is founded upon these uplifting, Olympic principles of goodness and righteousness.
Prof. Robert George: Yeah. For about 25 years, I myself have been involved in the struggle against the trafficking of human beings into slavery, mainly sexual slavery in the pornography and prostitution business in the United States. There's something to be ashamed of, and it still goes on on a massive scale. Women trafficked in, sometimes children trafficked in from the central Asian countries, from southeast Asia, from south of our own border. We have plenty to be ashamed of there, and plenty to fight against.
But we do need to get back to the question of religion and religious liberty. So, Ken, the story that you told, which seems to me to be exactly the right telling of the story of the No Religious Test Clause, reminds me that through the '60s and '70s, 1960s and 1970s—and I went to law school in the late 1970s, so it was still riding high at that point—the explanation that liberal legal scholars gave for the clause and protection of religious freedom under the clause was that the founders were Enlightenment people, and they didn't think religion was all that important. As Enlightenment people, they didn't think religion was all that important, and that's the reason they didn't want religious tests for public office.
But it seems to me the opposite's true. It's precisely because they thought religion was profoundly important that there needed to be no religious test, especially in a pluralistic nation that had many different religions. Now, originally, of course, it was many different sects of Protestantism and a handful of Catholics, mostly in Maryland, and a handful of Jews. But there was that religious pluralism, that religious diversity. And the founders thought it was very important that people be able to fulfil their own sense of their religious obligations, to act on conscience, to get right with God as they understood that to be constituted and required. What do you think?
Hon. Kenneth Starr: Yes, I think we can turn to law and not simply the expression of opinion in a powerful document or two. Let's turn to law, as Cardozo said, "the authentic forms of justice through which the community expresses itself." So how did the community express itself in law? And, Robbie, the words of the Northwest Ordinance of 1787 passed by Congress under the Articles and then reenacted early on in the new government in New York in 1789 and passed essentially without dissent, signed back into law by General Washington.
And those first words of the Northwest Ordinance are very clear. "Religion, morality, and knowledge being necessary to good government and the --", there's the H word, "the happiness of mankind." And then it goes on, "Schools and the means of education shall forever be encouraged," tells us a lot about the vision of what schools were doing in the 18th century, doesn't it? We don't have to go there in this conversation.
The point is for civic welfare, for the happiness of mankind, the same kind of language we find in the Declaration, Mr. Jefferson's words, for the happiness, but also for good government, we need religion and morality. Those are viewed as bulwarks of a civil society where people could, in fact, live in peace with one another, live in harmony with one another, and respect one another, but come together as General Washington said in that beautiful letter to the Jewish community in Newport, Rhode Island, that we will all be in this together.
We can go where we want to on a Friday, a Saturday, or a Sunday, or not go at all, and go to the golf course. You will not have any fear of official disapprobation, any kind of coercion on you to adhere to a particular set even of principles. So the idea of religion is it frees us up to be in a community, to be a truly civil society of people who care about one another.
Prof. Robert George: Well, Ken, in addition to bringing up Washington, now you've brought up Jefferson. So let's talk a little about Mr. Jefferson because it seems to me, and I know from your book, which I had the pleasure of reading in manuscript and providing a blurb for, I know from your book you agree with this, that Mr. Jefferson's metaphor of a wall of separation between church and state has caused no end of mischief in our constitutional jurisprudence. It's a good reminder that we shouldn't rely on slogans or aphorisms as substitutes for a political philosophy or for a jurisprudence.
But since we're on the topic of Jefferson, let's talk a little about him because that movement, that school of thought that I mentioned earlier which was dominant during my years of legal education, would look to Jefferson as an example of an Enlightenment figure who did not have much use for religion, who wanted to minimize its significance, privatize it to the extent possible, certainly get it as distant from government and the levers of political power as you could get. They depict him almost as if he's one of the European -- one of the French philosophe or something like that.
And yet, the same Mr. Jefferson wrote those words, "We hold these truths to be self-evident, that all men are created equal, that they are endowed" —by who?— "their Creator with certain unalienable rights." And that seems to be an absolutely central premise or principle of the American regime, the American Republic, that our fundamental rights and corresponding obligations are not the gift of a government, not a king, not a Parliament, not a Congress, not a president, not a governor, but rather of God himself, which puts God rather, would you say, in the picture when it comes to the foundations of government and good government and government that respects and protects fundamental rights.
Hon. Kenneth Starr: For us textualists, we go to the text. And I find Jefferson to be just richly complex. We do know, of course, that he was not an orthodox Christian or anything close to it, and yet, he was so enamored and impressed by the gospels that, of course, he essentially created his own version of the New Testament miracles.
But there we come to the ethical underpinnings, that these great teachings -- and he paid great tribute to the teachings of who he deemed Jesus of Nazareth, and that these are very important for a healthy and vibrant society where we live with one another in peace, as opposed to the law of the jungle and a Hobbesian kind of atmosphere where we're at one another's throats. So he wanted peace and tranquility, believed in it strongly, okay, the French Revolution and all that. So he was, as I say, a very complex person.
At the same time, we know from history that for whatever reason, judge not that you be not judged, he regularly attended what he called divine worship services that were held in the Capitol during his presidency. So perhaps he was learning from the sermon and felt, as Oliver Wendell Holmes Sr. famously said, that I need to have that plant watered, whatever his belief system was, I need that plant watered once a week. I need to be a better person, and I will be a better person by going to, quote, "divine worship" than I would otherwise.
But Jefferson was quite benign with respect to the role of faith in our activity, and, of course, he didn't, to my knowledge, Robbie, he did not in any way suggest to the House of Representatives or the Senate that they cease and desist from paying a chaplain. That practice of a legislative chaplaincy carried over, of course. In those days, the President of the United States didn't always go up and deliver the state of the union address and so on, but would send it over, obviously, in written form. But the point is there were all these practices that he wasn't inveigling against, and really were drawing from the language of Madison's. They were pretty close, and Mr. Jefferson --
Prof. Robert George: -- Memorial and Remonstrance.
Hon. Kenneth Starr: Memorial and Remonstrance. So to go back, yes, the metaphor of the wall of separation has been very badly misused, and I think it ushered in several decades of just uncertainty that the Supreme Court had to work its way through, but it did. Beginning exactly 40 years ago this spring, exactly 40 years ago in 1981, the Supreme Court of the United States—and I talk about this in the book—said no, the separation does not mean that, in this particular instance, a Christian group can't meet on a public university campus. Of course it can. The Young Democrats can meet. The Young Libertarians can meet. The Young --
Prof. Robert George: -- The chess club. The principle was equal treatment for religious as well as secular groups.
Hon. Kenneth Starr: Precisely. And this idea has continued to grow and prosper. And honor to whom honor is due, it really was Justice William Brennan who said what we lawyers call strict scrutiny, that we need to bring strict scrutiny -- he didn't use those terms, but that kind of analysis over from the Free Speech Clause into the Free Exercise Clause. It's all in the First Amendment, and so why would we have this anomaly of essentially a deferential approach to legislative intrusions into free exercise of religion but then hold the legislature, rightly, to very strict standards when it comes to incursions on freedom of speech?
It was Justice Brennan in dissent in the Sunday closing cases lifting up his voice to say Abraham Braunfeld in Philadelphia should be able to ply his trade, to open his shop on Sunday. Because he's an Orthodox Jew, he cannot—here's freedom of conscience again—he cannot open his shop on Saturday, but he can on Sunday. Let him do that. Now, we lost that case, that is, the friends of religious liberty. But that was a turning point when Justice Brennan, with all of his powers of persuasion inside the Court, persuaded -- it's clear to me that he persuaded Chief Justice Earl Warren, "Chief, you have erred. You are downgrading free exercise."
He, the Chief Justice Earl Warren, authored that Sunday closing -- that particular series of cases, as you know, but the case called Braunfeld v. Brown, which was the Establishment Clause challenge to Pennsylvania's law saying you must close on Sunday. And so that was the breakthrough moment intellectually because from that point, from the point of that great dissent by Brennan that was joined by others, the Supreme Court said, "That's it. Free exercise is so important, we're going to employ strict scrutiny."
Prof. Robert George: Ken, in a minute, I do want to turn to the question of the Religion Clause of the First Amendment and the especially to the question of whether there is a tension or some say even a contradiction between the non-establishment principle and the free exercise principle.
But I just want to go back to Jefferson for a moment to register my own view and see your reaction to it. Of course, Jefferson in his own time was criticized. His foes, and he had tremendous foes, as you know, they hated him. And one of their charges against him was that he was an atheist. Now, he always denied that, and I see no reason to consider him a liar on the point. It seems to me that he was not an atheist.
He would probably be what we would today call a deist, but I think we have to remember that deism doesn't mean what sometimes these days we think it means. At least in the 18th century, it didn't mean that God was entirely detached from the world of human affairs or the domain of human affairs. He, after all, famously, you recall, Ken, trembled for his country when he considered that God was just and that his justice would not sleep forever. Do you remember what he was talking about in saying that?
Hon. Kenneth Starr: Slavery.
Prof. Robert George: Slavery, exactly. Here is a man who owned slaves himself, couldn't get himself free of it, couldn't bring himself to give up his slaves. I think his standard of -- he lived way beyond his means, as you know, and I think he was dependent for that way of living on slavery. It's no credit to him to say that. And yet, he knew it was wrong. And why did he think it was wrong? Because it was contrary to the rule of God.
So God is actually involved in human affairs. God has an opinion about what's right or wrong. He has an opinion about the inalienable rights of man. He has an opinion about slavery. He's for the former; he's against the latter. And we better worry about God. We ought to worry about God's wrath because we're holding slaves. We're maintaining the system of slavery. And so he said, I repeat, "I tremble for my country when I consider that God is just that that his justice will not sleep forever."
Hon. Kenneth Starr: In other writings, you point to one of the most powerful indications that he was a believer, and not in the deist sense of the unmoved mover, once upon a time --
Prof. Robert George: -- Contemporary deism.
Hon. Kenneth Starr: -- built the watch and then left it to run itself. But rather, the sense of providence, and providence was a word that the founding generation, including Jefferson, were very comfortable with. And they had this sense of providence. Washington definitely had it in the most profound way. Mr. Jefferson never had to barely escape with his own life. Washington did in the French and Indian War and so forth.
And even our friends in the Native American community at the time were saying there is a spirit protecting this man because one of the chiefs said—this is really a very charming part of Ron Chernow's biography of Washington—said, "We aimed everything at that man, and we couldn't hit him. He was being protected." Churchill had the same kind of thing two centuries later, this sense that I'm being preserved for some reason that I, of course, can't discern. Jefferson, I think, was very much a believer.
Prof. Robert George: That sense of providence, of course, Ken, was also shared so deeply by Lincoln. If you look at that second inaugural address of Lincoln's where he is very clear that he considers this terrible Civil War with its unprecedented carnage -- my friend and colleague here, the great civil war historian here at Princeton, Jim McPherson, says he estimates about 750,000 people dead in a population a fraction the size of our population today.
But Lincoln regarded, and makes it clear in the second inaugural, that carnage as a punishment for the sin of slavery brought on both the North and the South, which is why he says in that address that if it be God's will that the war continue -- now, at this point, March of 1865, it looked like it would end soon, and it looked like a Union victory was imminent, and indeed, it was, as we now know. But he was saying even if it should continue till all the wealth piled up by the bondsmen's 250 years of unrequited toil shall be sunken, every drop of blood drawn by the lash shall be repaid with one drawn by the sword, still it must be said, and here he quotes the Bible, as he did so often, as it was said 3,000 years ago, the judgements of the Lord are true and righteous altogether.
Hon. Kenneth Starr: Yes. And there was, what, eleven different references in the second inaugural, the shortest inaugural address, and yet, eleven references to God or to the Almighty. So this is who we are. It's not surprising that in the throes of the Cold War, the Congress of the United States would incorporate in the Pledge of Allegiance the words "under God." And so this is long after Darwin, and evolution, and scientific materialism, and so forth.
And so William O. Douglas could, in fact, say in one of the great principles cases, called accommodational cases, Zorach v. Clauson, that we are a religious people whose institutions presuppose a supreme being. He was seeing in his mind's eye, no doubt, he being Justice Douglas, General Washington, Thomas Jefferson, Abraham Lincoln. These are our institutions. Obviously, the Civil War ushered in some very important institutions. There are post-Civil War amendments ending slavery, guaranteeing equal rights and due process of law at the hands of the states, and voting rights.
All these things tied together to give real voice to the idea that these institutions are vital, they are founded in the idea of an Almighty, and that it gives order to our institutions and to our law and to our lives. Still doesn't mean -- and here's one of the great principles I talk about in the book, Robbie, and that's what we talked about just a few minutes ago, freedom of conscience, which is now under assault. In the Congress of the United States, freedom of conscience, which has been so respected, including with the text of the Constitution, is now under assault.
Prof. Robert George: Yeah. You mentioned that insertion of the words "under God" into the Pledge of Allegiance by Congress, making it an official governmental action in the 1950s during the Cold War. I want everyone to know where those words came from. Where did Congress get the words under God? The campaign was led by the Catholic organization the Knights of Columbus to get Congress to insert the words. They came from Lincoln's Gettysburg Address where Lincoln prayed that this nation, under God, shall have a new birth of freedom, and government of the people, by the people, and for the people shall not perish from the earth.
Ken, could we move, then, to that question now of the First Amendment? We talked about the No Religious Test Clause and its importance in the development of our American concept of religious freedom. But when we talk about the constitutional law of religious freedom today, most people will assume what we're talking about, and usually we will be talking about the First Amendment. I quoted it earlier. Let me do it again. The very first words of the First Amendment are, "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."
Now, it has become almost customary, one might say, almost obligatory, to refer to the Establishment Clause, or Non-Establishment Clause, and the Free Exercise Clause. But the strict grammarians tell me that, no, there are not two clauses. There's one clause, but there are two elements to it. One is the prohibition of laws respecting an establishment of religion; the other, the protection of the free exercise of religion.
Why did we get that amendment, Ken? What was the purpose of amending the Constitution at all, adding a Bill of Rights? After all, Hamilton opposed having a Bill of Rights. Hamilton, one of the authors of The Federalist Papers, one of our greatest American founders, why did he oppose the Bill of Rights, and why did we get it anyway, eventually?
Hon. Kenneth Starr: Well, to ensure religious liberty. That was the unifying theme. And that included the liberty of the states to have established churches. So the word "Congress" is not inadvertent. It should say the federal government shall have no power with respect to the establishment of religion.
Virginia had essentially disestablished by that time, but again, by the time of the ratification of the First Amendment, a very significant number of states still had, in contrast to Pennsylvania which tended to have religious liberty from the very beginning, an established church of some kind. All New England, the great Puritan states, the Congregational Church was still established. So students going to Harvard College or to Yale College would nonetheless be going to college under the rubric of an established church, New York, to a certain extent, in terms of the Anglican Church.
And so Congress wanted to say -- or the people wanted to say, "We're not going to be interfering with that. That's going to be federal." It's a federalism determination. It's a Tenth Amendment determination whether you're going to have an established church or not. And then, free exercise, I think, was so important because it did not use a more, shall I say, passive term such as freedom of worship, worship at the church of your choice, which used to be a mantra, or church or synagogue or mosque of your choice. It was no, the free exercise of religion, and that's very important.
That word, the text -- we are textualists, and as Justice Elena Kagan said in honoring Antonin Scalia, "We are all textualists now." That word, the two words, free, liberty, and exercise. So we're able to carry our faith into the marketplace. And that's what the founding generation understood. And the Supreme Court, I think, had to catch up a little bit, but they did catch up over a period of time in reflecting and meditating on the text and seeing, no, this is about action in the marketplace, your free exercise of religion.
And we've seen it in the pandemic, which is one of the reasons that I wrote the book when it did. For governors to say that churches and religious institutions gathering is nonessential is, to me, a blatant violation of the First Amendment. You can't do that. You cannot say to churches, "You're nonessential." And I don't mean to make a mockery of what the governors were doing, but how could you say liquor stores and pot shops are essential, but churches and synagogues are not? On its face, a painful violation, it seems to me, of the First Amendment.
So the idea "exercise," that has to include, as the Supreme Court recently reaffirmed, being able to hold religious Bible study worship and so forth in your own home. Think of that. Think of the protection the Constitution affords to the home. Think of the constitutional protection to the family. So we really got off message constitutionally during the early months of the pandemic.
But we've got our footing again now, and we understand that the free exercise means you're talking about the activity with respect to addressing human trafficking. At our home church in Texas, there's a huge ministry and outreach—we call it Unbound—reaching out to the victims of sexual trafficking and so on. That is protected. And the Supreme Court of the United States understands there's something extra.
It's not just you have freedom of association to join the Chamber of Commerce or the Boy Scouts or the Girl Scouts. No, no, this is different. This is special because it's the free exercise of religion, and thus it is that the Supreme Court unanimously in a Christian school context, Ruth Bader Ginsburg in the unanimous court saying the Christian school can fire one of its teachers in punitive violations of federal civil rights laws. That's powerful. So that's not just freedom of worship, as important as that is. That's exercising your faith by forming a school, and then saying the school has its rules and regulations. And by the way, if you're not abiding by those rules and regulations, you're out.
Prof. Robert George: Ken, could we turn now to the topic that I mentioned just a few minutes ago? And that's the school of thought -- I associate it myself with, for example, the jurisprudence in this area of Justice John Paul Stevens. It's a school of thought I myself reject, but I'd be interested to hear your opinion, that proposes that there seems to be some sort of tension, maybe even contradiction between the values of the non-establishment principle and the values of the free exercise principle.
And the way the argument generally runs—we can plug in the specifics of any particular case, so I'm just going to put it out there at the general level—is the Free Exercise Clause seems to say that government must accommodate religious practice, religious belief, religious activity to the extent possible. But where government does that, so government carves out religious exceptions or religious exemptions in the hope of facilitating free exercise, it runs up against the establishment principle. It's now violating the Establishment Clause, which requires, on this reading, that government be absolutely neutral about religion and not favor it or support it or possibly dispose itself toward it in any way.
That was an awfully popular view, again, back when I was in law school. And a good deal of jurisprudence was constructed around it. What do you think of it? Is there a conflict?
Hon. Kenneth Starr: Profoundly wrong.
Prof. Robert George: Profoundly wrong. Okay, I agree with that. So tell me why. You've got the right answer, now show your work.
Hon. Kenneth Starr: Justice Stevens, as he reflected and meditated in particular on the Religious Freedom Restoration Act of 1993, came to the view that that ran afoul of the Establishment Clause for the very reason that you've indicated, favoring religion. And his vision was one of absolute what I would just call strict neutrality. We're blind. Whether it's a religious group, nonreligious group, we just have to be completely blind.
Well, excuse me. The neutrality principle or the non-establishment principle would say, among other things -- let's come back to one of my favorite examples, legislative chaplains. What's neutral about that? That is an obvious -- and use of taxpayer money to provide this. That is really not neutral, and yet, the Supreme Court of the United States held, no, that's not an establishment of religion.
Now, it did that when it was struggling with these issues of matters entrusted to the history and tradition of we the people. It struggled and upheld a state practice called Marsh v. Chambers, a legislative chaplains case in 1983 by a 5-4 margin. Now, what did the four dissenters, speaking through Justice Brennan, who I just praised, Justice Brennan said, "I know this is part of our history. I know it's part of our tradition, and I've even suggested in prior writings that there's nothing wrong with it."
Well, there's something profoundly wrong with it, and that is it violates our fundamental doctrine with respect to the Establishment Clause, the three-part test of the notorious case of Lemon v. Kurtzman from 1971. And so every -- in fact, Justice Brennan's opinion, his dissent in Marsh v. Chambers is really powerful because he says any first year law student would say in flux, test one, primary purpose, test two, what's the primary effect, test three, is there an excessive entanglement between government and religious community, flunk, flunk, flunk, big fat F.
And the Supreme Court of the United States has grown out -- it hasn't renounced totally. It's criticized this approach, but it has risen above it in an Olympian sense. And there, recall our dear Nino Scalia's description in Lamb's Chapel about this ghoul that gets up out of its grave, Lemon v. Kurtzman, and marches around frightening little children and so forth. He wanted to drive a stake right in the heart of it.
That is the doctrinal hang-up that Justice Stevens, God bless him, a wonderful man, but he fell into this error, this trap, that the Establishment Clause is somehow meant to just keep the government totally out so that we talk about accommodation. The Zorach v. Clauson case, it wouldn't arise in today's culture, but New York City allowed school kids in the New York City schools—they were open in those days, by the way—they allowed the kids to go to synagogue or to the Roman Catholic Church or whatever for religious training.
And the Supreme Court upheld that. It was divided, but Douglas wrote that -- Justice Douglas, a great, iconic liberal, said this is in our finest traditions—key word, traditions—of the people to do what? Accommodate religious expression. So I think the tension between -- the alleged tension is really quite false. It's quite artificial. Once you really think it through as to what was the, if I may say so, the understanding, the public meaning, which is we do not want the government interfering with religious activity. It shouldn't establish a church, and it shouldn't interfere with the free exercise.
The two work in harmony, as Professor and Judge Mike McConnell really put it very, very well 30 years ago, which is there is a unity in the clauses; namely, each is designed to promote religious liberty. And that's the fundamental question to ask. Does it promote religious liberty? And that includes, of course, freedom of conscience, the freedom from being coerced by the government, and that's one of the problems in the school prayer cases.
I don't defend -- some may say, "Oh, you must have been opposed to the Warren Court." I wasn't around to speak to the subject, but the Warren Court rightly said it's none of the business of the state to frame a prayer and to say, "Here it is for you to recite." I happen to agree with that. Now, not everybody will agree with that, but let's keep the government -- that's part of the Establishment Clause values as I see them, allow people to exercise their freedom of religion. Government, get out of the way.
Prof. Robert George: Ken, hold that though just for a second because I want to come back to the school prayer issue because I think we have a new manifestation of the issue coming up soon. But first, just for the non-lawyers on the call, so that they don't miss anything, what Judge Starr was referring to a few minutes ago is a case called Lemon v. Kurtzman which was and remains the official doctrine of the Court in this area of religion jurisprudence. And Judge Starr mentioned the three-pronged test for the constitutional validity of legislation. The legislation must have a secular purpose, its primary effect must be to neither advance nor impede religion, and there must not be an excessive entanglement between religion and government.
And yet, as Judge Starr said, and here, citing and quoting the late Justice Antonin Scalia, although that remains the official doctrine of the Court, the Court never abides by it, never lives by it. Judge Starr, very graciously toward the Court, said they have risen above it. They've taken an Olympian stance above it. But Ken, don't the justices have a responsibility to formally repudiate the case? It's hanging around there. As Justice Scalia said, it's one of these ghouls that's hauled out from time to time to frighten children. Shouldn't the judges just finally get that dagger into the heart of the thing and get this jurisprudence right?
Hon. Kenneth Starr: Yes, I think there is a duty to get the jurisprudence right, and I think they know it's right. I think the hang-up right now—I'll just be blunt—is Roe v. Wade. So what does that have to do with the price of potatoes in Idaho? But it's stare decisis, and Judge Elena Kagan, who is a great keeper of the stare decisis flame, has said in a very elegant way, she's a wonderful writer, "Well, the Lemon v. Kurtzman test does have utility in certain kinds of -- so it's a tool. It's a tool for our toolbox."
But that's far removed from Justice Brennan's very, if I may say so, again with great respect for Justice Brennan, a very rigid and doctrinaire approach. Here are three prongs of the test --
Prof. Robert George: -- None of which are in the Constitution, by the way. This is all created by the justices without much appeal to logic or structure or original understanding of the Constitution.
Hon. Kenneth Starr: It actually was -- let me read just one quick footnote.
Prof. Robert George: Yeah, go ahead.
Hon. Kenneth Starr: Go back and reread Chief Justice Burger's opinion—I wasn't clerking for him then—in Lemon v. Kurtzman. He viewed it -- I didn't talk to him about this, but just taking the text of the opinion, he viewed it as a restatement of existing law.
Prof. Robert George: Well, and that's actually not crazy if you consider how Justice Black originally framed this jurisprudence when the Establishment Clause first came before the Supreme Court of the United States, which is in 1947, if I recall—am I right, Ken?—in the Everson case. This happened just down the road from where I am in Princeton, New Jersey, in the Ewing Township area down the road. But I think there, Justice Black got things off on the wrong foot, and then Lemon v. Kurtzman is a sort of interpretation and application of that so-called strict separationist dogma.
Hon. Kenneth Starr: And that's also when the wall of separation was used. It said let's go back to Mr. Jefferson, as if, with all due respect to Mr. Jefferson, that he is the authoritative voice. His was one voice, and again, as we discussed before, the metaphor was never intended, even in Jefferson's own mind, to say, hey, why are they holding divine worship services in the Capitol? Marshal, Secret Service, clear them out.
Prof. Robert George: So tell me on the stare decisis point with Lemon v. Kurtzman, and I think you're right that the other goblin here hanging around is Roe v. Wade, and we're probably not going to get Lemon v. Kurtzman straightened out until we get Roe v. Wade straightened out.
But there's a case pending right now out of Mississippi, the Dobbs case, in which we have a challenge to a Mississippi law protecting unborn children, at least from the 15th week of gestation onward against elective abortion. It seems to me, on its face, that legislation, which I heartily approve of, is contrary, is inconsistent with Roe v. Wade, and I don't see how the Court is going to be able to uphold the legislation, which I believe it will. But I don't see how it can do it without reversing Roe.
So it looks to me like we have at least the prospect. We've been here before, of course, and it didn't happen. But again, we have the prospect of Roe being overturned. And that, I think, would pave the way for some much overdue reform in some other areas, including the religion jurisprudence.
Hon. Kenneth Starr: Yeah, we also have to deal with the Planned Parenthood v. Casey case where we argued—I was Solicitor General at the time—that Roe v. Wade should be overruled. And of course, famously, the Supreme Court declined to do that, deeply divided. But it was the plurality there of Justices O'Connor, Kennedy, and Souter who articulated a very elaborate approach to stare decisis. And I think that's really what we're facing as well in the religious freedom area of Lemon v. Kurtzman.
Prof. Robert George: That leads me to the issue that I wanted to raise with you that pertains to the school prayer cases. You remember that many, many years after the original school prayer cases in the '60s during the Warren period of Abbington v. Schempp, for example, the Supreme Court took a case called Wallace v. Jaffree where it struck down not a prayer but a state mandated moment of silence in schools in which children could do whatever they wanted with their moment of silence. They could think about the exam coming up. They could reflect on the school's football team and its future. They could say a prayer. They could do anything they wanted.
The Court oddly, peculiarly, in my view, looked to the motivation of the legislatures. I think it was in Alabama, if I remember the state. So they looked at the motivation of the Alabama legislature, and they said, "Ah-ha, this is a way of trying to sneak school prayer back into the schools, and we're going to strike that down." Very peculiar to me, but that has been the law, I'm thinking maybe about 1979, I might have the year off.
But now, just yesterday, the governor of Florida, Ron DeSantis, signed into law a Florida bill putting a moment of silence back into the schools in Florida. So now the Court is going to have a chance to overturn Wallace v. Jaffree. And if it does that, I think it will be where you want it to be.
It doesn't have the state writing prayers. It doesn't have the Protestant version of the Our Father prayer, The Lord's Prayer, in place. It's left to the students, guided by their families and their religious traditions to pray or not pray during that moment of silence. But the school day isn't secularized in the sense that students are not even given an opportunity to begin with prayer if they want to. Do you think that would be a satisfactory outcome to this controversy?
Hon. Kenneth Starr: Oh, very much. In fact, to borrow from Churchill, this was not their finest hour; that is, Wallace v. Jaffree. Every now and then, the Court will indulge in, well, let's just see what the attitude was of the legislators. They did it to, for some of us, happy effect in the Jack Phillips cakemaker case to protect his freedom of conscience.
Prof. Robert George: Masterpiece Cakeshop.
Hon. Kenneth Starr: There was a real no-no on the part of the Civil Rights Commission of Colorado with several expressing real hostility to religion. And that is something that really got clearly Justice Kennedy, who authored the majority opinion, very exercised. Thou shall not show hostility to religion.
And so yes, I think the idea of a moment of silence does what? It puts the situation in the hands of the students, the individual, to determine whether he or she will use that time to think about football or to recite the Lord's Prayer. It's an act of freedom, so I view it as a pro-freedom measure, which is, of course, ultimately what the Bill of Rights is all about and what religious freedom does for 16 words that you've quoted. That's what those words are all about. It's the liberty of we the people.
Prof. Robert George: Ken, time has flown by. We're down to our last few minutes. I've got some questions. Can I do a lighting round with you?
Hon. Kenneth Starr: Okay.
Prof. Robert George: Okay. First, Hope Lehman out in Oregon has a question. What do you mean specifically -- can you be more specific, Judge Starr, about the assault on religious freedom in Congress right now? What should voters be on lookout for in terms of coded language for curtailing religious liberty? I'm guessing you have in mind, perhaps among other things, the so-called Equality Act, which I would label the Inequality Act. Am I right? Is that it?
Hon. Kenneth Starr: Bingo. Look at the Equality Act. It passed the House of Representatives, and as it's pending in the United States Senate, which, of course, is deeply divided 50/50, and pray for Joe Manchin, at times, pray for the Senator for Arizona. But be that as it may, that act, the Equality Act, that proposal, would by its terms essentially repeal for purposes of public accommodation laws the Religious Freedom Restoration Act.
Prof. Robert George: Yeah, very good. Next question. Do you have a prediction about the outcome of Fulton? Okay, for non-lawyers out there, Fulton is a case now pending in the Supreme Court of the United States. We could have a decision any day.
It has to do with the right of the Catholic Archdiocese of Philadelphia, which has provided adoption services for orphan children, has a wonderful record over 100 years, but of course, consistent with its Christian doctrine, it does not place children in same-sex headed households. Therefore, the City of Philadelphia on its own initiative with no complaint from anybody has decided to render the Archdiocese of Philadelphia ineligible for contracts on the same terms as other religious institutions and as secular institutions.
Ken, it looks to me -- my crystal ball tells me the Supreme Court is going to say that the Archdiocese of Philadelphia cannot be discriminated against in that way. Do you predict something different, or do you think that'll be the outcome?
Hon. Kenneth Starr: No. Hear, hear. I second that and believe that the Court, in fact, took Mrs. Fulton's case, the Catholic Social Services Case, to reverse. And I hope it's by a supermajority.
Prof. Robert George: Well, we had something like a majority in Masterpiece Cakeshop. You mentioned that earlier and how upset Justice Kennedy was with the hostility of the Colorado Human Rights Commission toward religion. Remember, that case, Justice Thomas and Justice Alito and Justice Kennedy were joined by Justice Kagan and Justice Breyer. So sometimes these supermajorities form when this hostility to religion really manifests itself.
Now, here's the $64,000 question. This comes from Gregory Curfman. Here it comes. Will Smith be overruled? And what Gregory has in mind here is Employment Division of Oregon v. Smith, roughly 1991. Ken, I'll let you explain the rest of it, and you can give us your prediction.
Hon. Kenneth Starr: Yes. Employment Division v. Smith essentially said that as long as a state law is generally applicable and it's neutral toward religion, then there are going to be no judicially created freedom of conscience exceptions.
Prof. Robert George: Even if it has negative effects on religion, right?
Hon. Kenneth Starr: Correct. And the Court in Desousa in an enormously important opinion by Justice Scalia, and it is very complex in terms of what he had to be going through mentally, because he knew full well that this general principle, the law of general and neutral applicability admits no exceptions. It's a political process. Go to Salem, Oregon, if you want some kind of exception for peyote and some of the others. Go to the state capital and what have you.
The Supreme Court of the United States spoke. Deep dissents, and it was ideologically divided, I'm pleased to say, because it was a very anti-religious liberty opinion. And this is the law that the Religious Freedom Restoration Act purported to overrule totally. It couldn't do that because Congress doesn't have the power to overrule the Supreme Court with respect to a constitutional decision. But it did have the effect of cabining federal power and making sure that federal exercises of power respected religious liberty.
Now, the question is will it be overruled? The way the argument went in Fulton v. City of Philadelphia suggests to me that it will not be overruled today. Should it be overruled? Yes, it should.
Prof. Robert George: Okay. And a final question. Judge Starr and Professor George, one of you is Protestant and the other is Catholic. Ken, do you remember which of us is which? Anyway, our questioner says that one of us is Protestant and one of us is Catholic. Are there ways that those two groups are differently at risk in terms of loss of religious liberty in today's woke, anti-religious climate?
Well, my own view on this, and I'm going to give Judge Starr the last word, is no, we're in this together. And it's not just Catholics and Protestants. It's observant Jews, it's observant Muslims, it's Latter-day Saints. I say all the religious groups, at least those representing traditional religions, those with traditional moral values, are at the same risk. And this is a time when really do hang together or hang separately. Ken, what do you think?
Hon. Kenneth Starr: My final word is amen, and a hearty Protestant amen to my Catholic brother. We're in this together, and I think that is understood by the Conference of Catholic bishops, by leaders of non-hierarchical Evangelical churches, increasingly is a sense that we do have to, as communities of faith, including those outside the Judeo-Christian tradition, we need to come together and protect religious exercise, not just religious expression, but religious exercise.
Prof. Robert George: Well, I want to say amen to that myself, and I want to commend Judge Starr's wonderful book, Religious Liberty in Crisis, to everyone out there. I should add that it includes some reflections on Judge Starr's own experience in arguing some of the most important religious freedom cases in our constitutional jurisprudence. Ken, congratulations on the publication of the book, and thank you for having the conversation with me today. It's always a blessing to be with you.
Hon. Kenneth Starr: Well, thank you, Robbie, and thank you for hosting this, and to The Federalist Society.
Prof. Robert George: Nicholas, over to you.
Nick Marr: Thanks very much, and just a quick thanks on behalf of The Federalist Society to you both for the benefit of your valuable time and expertise this afternoon. I'm sure our listeners enjoyed this great conversation. I know I did. So we're very much appreciative of your time.
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Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.