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First Liberty Briefing

First Liberty Briefing is an exclusive podcast hosted by First Liberty Institute’s Senior Counsel Jeremy Dys. In about 90-seconds, three times a week, Jeremy recalls the stories that have shaped America’s religious liberty, from the founding era to current legal battles and more. It’s an insider’s look at the stories, cases, people, and laws that have made America the world’s leader in protecting religious liberty.
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Now displaying: February, 2018
Feb 28, 2018

Judges on the Sixth Circuit have a lot to say about who may provide the invocation prior to a county commission meeting. Learn more: FirstLiberty.org/Briefing.        


We recently noted the decision by the U.S. Court of Appeals for the Sixth Circuit approving the invocations presented by the commissioners of Jackson County, Michigan before their meetings. Today, I wanted you to hear the judges in their own words.

Judge Griffin, writing the opinion for the Sixth Circuit explained, “There is no support for [plaintiff's] granular view of legislative prayer.” He said, “That the prayers reflect the individual Commissioners’ religious beliefs does not mean the Jackson County Board of Commissioners is ‘endorsing’ a particular religion, Christianity or otherwise.”

Judge Sutton, concurring, wrote, “Good manners might have something to say about all of this and how it is done. So too might the Golden Rule. But the United States Constitution does not tell federal judges to hover over each town hall meeting in the country like a helicopter parent, scolding/revising/okaying the content of this legislative prayer or that one.”

Dissenting, Judge Moore wrote that the Supreme Court has approved only the “right to open its meetings with solemn and respectful prayers, which was targeted at legislators and offered by clergy or volunteers from a variety of faith traditions,” but not the practice of “government officials themselves asking the public to participate in exclusively Christian prayer.”

That’s what they think about. Now the question is: what does the Supreme Court think?

To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

Feb 26, 2018

The practice of opening government meetings with prayer has been a longstanding tradition going back centuries. However, the federal courts of appeal are split over this very practice. Learn more at FirstLiberty.org/Briefing


Can county commissioners open their own meetings with prayer?

The U.S. Court of Appeals for the Fourth Circuit recently prohibited Rowan County’s commissioners from opening their meetings with prayer. But, the federal courts of appeal are split over whether prayers offered by legislators at local government meetings are unconstitutional. In another one of our cases, Bormuth v. County of Jackson, the Court of Appeals for the Sixth Circuit approved of the same practice.

Opening government meetings with prayer is a centuries-old tradition that goes back to before the founding of our nation and continues to this day before Congress, statehouses, and thousands of local governments across the country. It shouldn’t be very controversial.

The Supreme Court previously approved of the long-standing tradition of “legislative prayer” and its role in solemnizing policymaking sessions, encouraging lawmakers to selflessly seek the greater good, and acknowledging the role that faith plays in the lives of millions of Americans. In 1983, in Marsh v. Chambers and then again in Town of Greece v. Galloway, the Supreme Court held that prayers offered by private citizens before government meetings are fully consistent with the Constitution and an important part of America’s history and heritage.

But, what if that citizen is an elected official? That’s the question we hope the Supreme Court will now answer.

To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

Feb 23, 2018

President Trump is fulfilling his constitutional obligation by signing an executive order that prioritizes religious liberty within the Trump Administration. Learn how the president did so at FirstLiberty.org/Briefing.


On the 2017 National Day of Prayer, President Trump took a remarkable step in support of religious liberty.

President Trump assembled religious leaders from a variety of faith traditions in the Rose Garden of the White House. In addition to making remarks about the National Day of Prayer, the President signed an executive order strengthening religious liberty.

The executive action prioritizes religious liberty within the Trump administration, encouraging the HHS Secretary to consider rules alleviating the religious conscience of those impacted by Obamacare, while ordering the IRS to decline enforcement of the Johnson Amendment, and directing the Attorney General to issue guidance to all executive agencies on the law governing religious liberty.

This executive order is one of the ways in which the President is fulfilling his constitutional obligation to ensure that the laws passed by the legislature be faithfully executed. Moreover, the executive order reigns in those administrative agencies that have, in recent years, often ignored the laws governing religious liberty.

As my boss, Kelly Shackelford said after the President signed the order, “Our country was founded on the promise that its government would respect the religious liberty of its people. America’s commitment to freedom—and especially religious freedom—should be our national priority.”

Much work remains in defense of religious liberty, but, with this order, the President has set his administration on good footing.

To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

Feb 21, 2018

The Framers inserted a couple of words in the Oaths Clause to protect the religious conscience of citizens taking oaths. Learn how they implemented this protection at FirstLiberty.org/Briefing.


On our last episode, we discussed the Religious Test Clause, found in Article VI of the United States Constitution. Today, I’d like to discuss the clause just before it: the “Oaths Clause.”

In practical terms, the Oaths Clause required federal officials to be bound to their office with an “oath or affirmation” that they would support the Constitution.

Most immediately, that language came in stark contrast to the oath the new Americans once swore to England’s King. No longer would Americans swear allegiance to a single human; rather, their duty in office would be in service and support of the Constitution and, by extension, to the “we the people” mentioned in its preamble.

You probably understand the part about oaths, but, why did the framers insert the “or affirmation” part? The answer reveals our country’s commitment to recognizing that its government should neither compel, nor compromise the religious conscience of its citizens.

Some religious beliefs prevent the taking of oaths of any kind, save an oath to God alone. It may seem insignificant upon first glance, but by inserting the word “or” in the Oaths Clause and giving the option to affirm support of the Constitution, the framers made the official policy of the United States that it would show deference to the religious conscience of its citizens.

To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

Feb 19, 2018

Tucked away in the corner of the United States Constitution is an important phrase that demonstrates our country’s commitment to religious liberty. Learn why the Framers sought to protect religious liberty at FirstLiberty.org/Briefing.


Tucked away in the corner of the United States Constitution is an important phrase that demonstrates our country’s commitment to religious liberty.

Toward the end of the main part of the Constitution we find Article VI, dealing mostly with debts and the supremacy of treaties. But, in the final paragraph, the framers prohibited any “religious test” for constitutional officers.

Perhaps the most interesting thing about this Religious Test Clause is that it has been entirely self-executing, probably because no religious test has actually been presented to any federal office holder.

But, the framers had at least two concerns about religious tests. First, if permitted, could religious tests be used by religious groups to exclude individuals from other religions? And, equally important, the framers recognized that a religious test could keep good and wise, but secular, citizens from achieving office.

The framers of the constitution sought a government officially neutral toward religion, one neither hostile toward, nor sympathetic of, the religious beliefs of its federal officers. Inherently, this recognizes the outer limits of government: that government’s job is to govern, rather than demand its people practice religion in the manner prescribed by Congress.

In this way, somewhat unique in history, the United States became a government that permitted its people to pursue their relationship with the Divine without pressure—or punishment—by their government.

To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

Feb 16, 2018

Harbor Missionary Church was required by the city of San Buenaventura, California to file for a conditional use permit in order to continue their homeless ministry. The city denied the permit without much of an explanation. Learn more about the case by visiting FirstLiberty.org/Briefing.


Ministry to the homeless is a difficult, often thankless task for many houses of worship. Some cities tend to make it even harder.

Harbor Missionary Church in the city of San Buenaventura, California had what appeared to be a thriving ministry to the homeless. But San Buenaventura required the church to file for a conditional use permit in order to continue the ministry. They did and were hopeful when the city staff recommended that the permit be issued. But, the city planning commission denied the permit outright and without much of an explanation.

The church filed a lawsuit alleging that the denial violated the Religious Land Use and Institutionalized Persons Act or RLUIPA. On appeal to the United States Court of Appeals for the Ninth Circuit, the church argued that the city had substantially burdened their religious exercise. In fact, without help from the Ninth Circuit, the church would be forced to sell its property and raise $1.4 million in order to relocate their homeless ministry. Thankfully, the Ninth Circuit concluded that the city had violated RLUIPA by denying the special use permit.

Zoning laws are important to local government, but they can be used to prevent the free exercise of religion as well. When they do, RLUIPA provides a check on the government’s exercise of authority against a religious organization’s religious liberty.

To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

Feb 14, 2018

Justice Alito is a proven defender of religious liberty. You may recall he authored the court’s opinion in Hobby Lobby, protecting the religious consciences of family-owned businesses. Learn how he’s challenging Americans to protect religious liberty at FirstLiberty.org/Briefing.


Supreme Court Justice Samuel Alito recently gave remarks to a group in New Jersey. His 45-minute presentation proved to be quite sobering.

Justice Alito is a proven defender of religious liberty. You may recall he authored the court’s opinion in Hobby Lobby, protecting the religious consciences of family-owned businesses. In other opinions, he has warned of the impact the sexual revolution may inflict upon the religious liberty of Americans.

In his latest remarks, however, Justice Alito told the audience, “You don’t need to be a weatherman to know which way the wind blows. A wind is picking up that is hostile to those with traditional moral beliefs.”

But, the good justice ended with a word of caution and challenge. He said, “We are likely to see pitched battles in courts and Congress, state legislatures and town halls. But the most important fight is for the hearts and minds of our fellow Americans. It is up to all of us to evangelize our fellow Americans about the issue of religious freedom.”

That’s where you and I come in. Freedom—and especially religious freedom—is not a given in human history. It is something each generation must renew for itself. Telling the story of religious liberty, and its blessings, to one another is part of our responsibility as Americans. It’s also how we preserve liberty.

To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

Feb 12, 2018

Recent Minneapolis reports reveals that an aspiring female teen boxer has been granted religious accommodation. Learn about this and more sports-related cases that require religious liberty at FirstLiberty.org/Briefing.


News out of Minneapolis reports of an aspiring teen boxer granted a religious accommodation.

Amaiya Zafar is a 16-year old boxing protégé that, for some time, has had her sights set on representing the United States as a boxer at the 2020 Olympics. But, current rules place her in the position of having to choose between her faith and her sport.

USA Boxing, however, has solved the problem for the St. Paul teenager by accommodating her faith in the ring. As a result, Zafar will be permitted to keep her arms and legs covered with long sleeves and leggings, as her faith requires.

That’s a simple solution and, while I don’t share Zafar’s religious beliefs concerning clothing, I do support efforts by anyone, USA Boxing included, to take reasonable steps to respect the religious beliefs of Americans whenever possible.

Of course, Zafar is not the first boxer to need a religious accommodation. Cassius Clay, better known as Muhammad Ali, famously asserted his religious beliefs as grounds for conscientious objection to the Vietnam War.

In other sports-related cases, we are working to protect the right of Coach Joe Kennedy to pray silently at the 50-yard line when the game is over. Meanwhile, in Florida, we are defending the right of a football team at a Christian school in Florida to be able to pray over the loudspeaker prior to kickoff.

As these stories remind us: religious liberty impacts every area of our life, including sports.

To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

Feb 9, 2018

Texas Governor stands for religious freedom by signing a bill that prohibits the government from forcefully demanding ministers’ sermons. Learn more at FirstLiberty.org/Briefing.


It’s not every day that the governor of a state finds himself behind the pulpit of a church. But, I guess not every state is Texas.

Greg Abbott, governor of the great state of Texas, joined Pastor Steve Riggle and churchgoers at Grace Community Church, recently to sign a bill into law.

The bill that passed the Texas legislature made it unlawful for the government to force religious leaders to turn over copies of sermons during a civil lawsuit or administrative proceeding.

And, if you don’t think such a law is necessary, recall that the pastor of the church Governor Abbott was in that day was asked by the mayor of Houston to turn over his sermons—even though he wasn’t even a party to the lawsuit.

If that’s not enough, recall that Dr. Eric Walsh, himself a lay minister, was fired by the State of Georgia over something he said in a sermon. And, after he sued the state, Georgia’s attorney general subpoenaed copies of Dr. Walsh’s sermons, sermon notes, and sermon transcripts.

So, the day has come in which we need laws on the books to make it clear that the state is not entitled to review a pastor’s sermons. The pulpit has rightly been called “the sacred desk.” The promise of America has been that he who fills that desk is entitled to speak what his conscience demands.

To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

Feb 7, 2018

In April of 2017, the Indiana General Assembly passed, and its governor quickly signed, a measure providing students with the chance to take an elective surveying the worlds religions, Learn more about this law at FirstLiberty.org/Briefing.


The Hoosier state has taken steps to codify important religious liberty protections for Indiana’s students.

In April of 2017, the Indiana General Assembly passed, and its governor quickly signed, a measure providing students with the chance to take an elective surveying the worlds religions, while outlining the civil liberties afforded to its students in Indiana’s public schools.

The new law provides each local school district the freedom to offer an elective course that will study the historical, cultural, and literary contributions of the world’s major religions.

At the same time, some of the critical civil liberties protected by the law include protecting a student’s right to express their religious beliefs in class and class assignments, the right to pray before, during, and after the school day, and the right to access a school’s facilities in the same manner that secular groups do.

Of course, many of these protections are found in policies issued by the United States Department of Education. Nonetheless, it is encouraging to see a state dedicate significant legislative effort to religious liberty. Students should not be required to hide their faith at school, nor should they be punished for daring to discuss their religious beliefs while at school.

Religious liberty should be our national priority. It’s good to see that, at least for one state, it’s a clear priority for their students.

To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

Feb 5, 2018

Sometimes we think that the judicial system can and will solve all of our disputes. Learn about a recent case from the Court of Appeals that says there are some things a court cannot decide at FirstLiberty.org/Briefing.


Sometimes we think that the judicial system can and will solve all of our disputes. A recent case from the Court of Appeals of Ohio says there are some things even a court cannot decide.

A Roman Catholic institution in Ohio recently dismissed a student studying for the priesthood following an investigation into allegations of moral misconduct. The student, understandably upset, sued the school for breach of contract, intentional infliction of emotional distress, and other charges.

On appeal, the state court in Ohio explained that courts may only adjudicate those matters involving a subject matter courts are authorized to consider.

Courts are permitted to evaluate secular disputes, but the doctrine of ecclesiastical abstention prevents courts from settling disputes involving purely doctrinal and ecclesiastical matters. Here, the court explained, all of the claims alleged stemmed from a dispute by a religious organization over matters of church doctrine. Any resolution would, necessarily, require the court to evaluate religious doctrine—a task courts are ill-prepared to undertake.

The judicial system has broad jurisdiction over matters ranging from simple misdemeanors to complex commercial transactions. Yet, it is right and proper that courts have limits. The ecclesiastical abstention doctrine highlights those limitations, showcasing along the way the inherent deference courts have for religious bodies to govern their own, religious affairs.

To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

Feb 2, 2018

When Tzvi McCloud asked for a religious accommodation at his new job in order to celebrate Rosh Hashanah, a Jewish holy day, he was disciplined and sent home. Learn more at FirstLiberty.org/Briefing.


Tzvi McCloud was hired to work in customer service for XPO Last Mile, a logistics company out of Maryland. But, he didn’t even make it to his first day of work.

When McCloud’s operations manager called him to let him know he was hired and asked him to report to work on October 3, 2016, McCloud explained there was a problem. McCloud wanted to report to work that day, but it was Rosh Hashanah, one of the holiest days of the year for him as an Orthodox Jew. He asked if reporting the next day would be permissible.

Initially, the manager agreed, but, later that evening, the market vice president called to inform McCloud that the only days the company observed were federal holidays, not religious ones.

McCloud chose to observe his holy day and showed up for work on October 4. When he did, he was sent home. Now, the EEOC is involved, suing XPO for religious discrimination.

EEOC regional attorney Debra Lawrence said it well, “The freedom to exercise one’s religious beliefs is one of our nation’s fundamental values . . . A one-day postponement of a start date is not an undue hardship.”

In other words, religious liberty and the corporate mission need not be in conflict. Accommodating the religious practices of our employees is good business.

To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

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