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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: June, 2017
Jun 30, 2017

In the recent Supreme Court decision in Trinity Lutheran v. Comer, the newest member of the court, Justice Neil Gorsuch, felt compelled to qualify his endorsement of the majority opinion. Learn what his is opinion on the matter is by visiting FirstLiberty.org/Briefing.


Recently, we discussed the Supreme Court’s decision in Trinity Lutheran v. Comer. Chief Justice Roberts declared it “odious to the constitution” for the state to prevent a church from participating in a public benefit merely because of its religious status.

The newest member of the court, Justice Neil Gorsuch, felt compelled to qualify his endorsement of the majority opinion. In his concurring opinion, Justice Gorsuch suggests removing the false distinction between religious status and religious use. As an example, he asks, “Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner?” The same facts could be described in the same way, but, under the court’s decision, only one is protected.

 Justice Gorsuch reveals that he believes that the First Amendment protects more than religious status when he writes, “Neither do I see why the First Amendment’s Free Exercise should care.” Whether status or use, the point of the First Amendment is to protect religious exercise. He says, “I don’t see why it should matter whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things (use). It is free exercise either way.”

 It’s good to see the newest member of the court thinking so clearly. The First Amendment should protect the free exercise of religion, regardless of status or use.

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

Jun 28, 2017

The Supreme Court of the United States issued its opinion in the case of Trinity Lutheran v. Comer in favor of the church. Learn more about the playground case here: FirstLiberty.org/Briefing.

The potential for scraped knees has led to an important victory for religious liberty.


On June 26, the Supreme Court of the United States issued its opinion in the case of Trinity Lutheran v. Comer. The court, by a margin of 7-2, held in favor of the church.

Trinity Lutheran applied for reimbursement by the State of Missouri through a program that would allow them to trade out their course, pea gravel surface for softer, shredded tires on their church-operated child learning center playground. But, Missouri rejected Trinity Lutheran’s application. Why? Because the state maintained that it could not fund grants designated for religious organizations.

 The Supreme Court found such a policy to be rank religious discrimination. As Chief Justice Roberts said, “The Missouri Department of Natural Resources has not subjected anyone to chains or torture on account of religion. And the result of the State’s policy is nothing so dramatic as the denial of political office. The consequence is, in all likelihood, a few extra scraped knees. But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”

I agree. No state official should discriminate against people of faith, or the religious organizations they operate, based merely on their religious status.

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

Jun 26, 2017

Mosque wins fight against Township preventing building permit grant using the Religious Land Use and Institutionalized Persons Act. Learn more about the victory at FirstLiberty.org/Briefing.


3.25 million dollars—that’s the price one New Jersey town will pay for its religious discrimination.

Not long ago, on this program, I told you about the refusal of Bernard’s Township, New Jersey, to grant a building permit to the Islamic Society of Basking Ridge New Jersey.  The society fought city hall for at least four years, having their application denied 9 separate times. 

In November 2016, the US Department of Justice filed a suit against the township, alleging a violation of the Religious Land Use and Institutionalized Persons Act.  The Department of Justice won just two months later.

But, by May 2017, the Township decided to give up the fight, settle with the government, and allow the Islamic Society to build their mosque. 

This is good news for religious liberty.  Though Bernards Township, in this case, used their zoning laws to prevent the building of a mosque, it could’ve just as easily been a synagogue, church, cathedral, or other house of worship.  City governments cannot intentionally throw up permitting obstacles to religious organizations.  They must treat a religious organization’s application for land use just like it would any other land use application. 

In a land that values freedom, our government should never make the free exercise of religion difficult.

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

Jun 23, 2017

Texas Governor signs a bill prohibiting state review of sermons. Learn more about the bill 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.

Jun 21, 2017

A new Supreme Court decision respects the American tradition of allowing religious ministries and organizations to pursue their missions without interference from the IRS. Learn more at FirstLiberty.org/Briefing.


In 1977, the Internal Revenue Service tried to declare that Catholic nuns operating a hospital was not a “religious function.” Congress responded by amending the Employment Retirement Income Securities Act or ERISA to prevent the IRS from deciding what is or is not a church.

Nonetheless, class-action lawyers recently tried to argue that because some religious hospitals established pension plans, ERISA’s exemptions did not apply because those plans were not established by a church.

Well, a unanimous Supreme Court recently rejected that reasoning.  The Court recognized that Congress’s amendment of ERISA continues to protect religious organizations from the burdens of ERISA, foreclosing the possibility that the IRS could bankrupt a religious organization simply because it does not believe the organization is religious enough.

First Liberty Institute filed a friend-of-the-court brief in this case on behalf of several religious organizations.  As my colleague, Justin Butterfield, said of the decision in Advocate Health Care Network v. Stapleton: The History of the United States of America is one requiring the government to respect the religious freedom and autonomy of its houses of worship and religious organizations. The Supreme Court’s decision respects that great history and tradition, allowing churches, synagogues, mosques, and religious ministries to pursue their religious mission without the weight of government bureaucracy and regulation hindering their efforts and intruding upon their mission.”

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

Jun 19, 2017

The recent leak of the HHS mandate gives hope to religious business and ministries who have been penalized by the contraceptive mandate under Obama. Learn more at FirstLiberty.org/Briefing.


After litigating for nearly three years, First Liberty Institute’s religious ministry clients look to receive relief from the crippling penalties imposed by the HHS contraceptive mandate found in “Obamacare.”  Well, at least that what it seems. 

Our clients, several religious ministries from across the country, first filed suit seeking exemption from the Obama administration’s contraceptive mandate in October of 2014 and have been waiting for resolution on appeal since the spring of 2015.  After the Supreme Court heard arguments in the Little Sisters of the Poor case, the Court told the Obama administration to work with clients like ours to find a resolution.  But, that never happened before President Obama left office. 

If the interim final rule recently leaked is adopted by the U.S. Department of Health and Human Services, its broad protections for religious conscience of individuals, nonprofits, and businesses would all but end the pending lawsuits because the rule simply exempts from the mandate those who object for religious reasons.

As I recently explained to the press: “The Trump administration has clearly announced its intent to adopt an important new policy for religious ministries across the country: the government will no longer force a religious ministry to violate their faith or face a government penalty.”

Nothing is certain yet, but it is nice to know that someone in the Trump administration is working to protect the religious conscience of our clients.

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

Jun 16, 2017

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

Jun 14, 2017

Toni Richardson, a special needs educational technician in Augusta, Maine, was threatened to be disciplined and potentially fired for telling a fellow employee, with whom she also goes to church, that she would pray for him. Learn more at FirstLiberty.org/Briefing.


Toni Richardson is an educational technician at Cony High School in Augusta, Maine.  Her work in the special needs classroom can be very demanding, but she loves it.

A colleague, with whom Toni attends church, was new to the job and found it overwhelming.  One day, after the students had left the classroom and it was just the two of them, Toni tried encouraging her colleague, letting him know that she was praying for him.  He thanked her for the encouraging gesture. 

Soon after, when talking to the HR director for the Augusta School Department, Toni was asked whether she had ever told someone at school that she was praying for them.  She was shocked, but admitted that she had.  The HR representative said Toni had violated the law and warned her never to do it again. 

Toni also received a coaching memorandum informing her that she had violated the First Amendment and admonishing her to make “no reference to [her] spiritual or religious beliefs” while at school.  And, if she did, the memo said, she could face additional discipline or even dismissal.

Last month, First Liberty, along with our co-counsel at the Maine law firm of Eaton Peabody, filed a charge of religious discrimination and retaliation with the EEOC. The law is pretty clear: school employees are not required to hide their faith from each other while on campus.

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


Jun 12, 2017

The lawsuit that was filed against the Chabad of Irvine was recently dismissed. Learn about how religious liberty was upheld at FirstLiberty.org/Briefing.


Several months ago on this program, we discussed the religious practice of “Kaporos.” It literally means “atonement” and has been a religious tradition of Orthodox Jews for over 2,000 years.

On the eve of Yom Kippur, some Orthodox Jews will recite scripture and then swing a live chicken over their head while reciting a prayer like, “This is my substitute, this is my exchange, this is my atonement. This fowl will go to death, and I will enter upon a good and long life.” The chicken is then butchered in the Kosher fashion and the meat of the chicken is then often donated to those in need of food. The ceremony invites the participants to contemplate their own mortality and appreciate the atonement of their sins.

We represent the Chabad of Irvine that was sued by animal rights activists in Federal court during the holy week of October of 2016. I’m pleased to report that that lawsuit was recently dismissed. We will continue to defend this synagogue at the United States Court of Appeals for the Ninth Circuit, but the practice should continue for at least the foreseeable future.

Rabbi Alter Tenenbaum expressed his relief well, he said, “We are overjoyed that the judge saw the wisdom of protecting our ability to practice a cherished tradition of our faith. This is a great victory, not only for the synagogue, but for all Americans who value our constitutional freedoms.”

To learn more about this case and how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

Jun 9, 2017

Universities are increasingly providing space for religious students on campus. Learn about why some oppose this decision to have separate religious spaces at FirstLiberty.org/Briefing.


A recent survey of Big 10 colleges reveals that universities are increasingly providing space for religious students on campus.

According to the report, these new spaces on campus serve students from a variety of faith backgrounds. Some use the rooms for prayer and others for religious gatherings. 

But, not everyone thinks the rooms should be used for just religious purposes, however. The Ohio State University student government passed a resolution urging campus leaders to reconsider the interfaith space as religious-use only. 

Activists off-campus questioned the University of Iowa, suggesting that setting aside rooms for use by religious students “unconstitutionally entangled itself with religion.”

That, of course, is simply the political posturing of ideologues that dislike any religion appearing in public. The efforts by these universities are to be commended. Providing space for religious students to meet is an important means of recognizing the diverse, religious background of its student body.

At the same time, it should be unnecessary. Religious students should be able to use campus space on the same terms as secular students. To the extent certain religious backgrounds require specific space, the efforts by these Big 10 universities are to be commended. Yet, it is important to remind our coeds that, as in all of life, religious liberty means religious students are to be welcomed and tolerated in the university setting. 

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

Jun 7, 2017

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.

Jun 5, 2017

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.

Jun 2, 2017

The Roman Catholic Archdiocese of Kansas City filed a lawsuit against the Mission Woods city council for denying the use of his own home for religious meetings on the basis of traffic and parking concerns. Learn more about this issue at FirstLiberty.org/Briefing.

The city of Mission Woods, Kansas covers just 64 acres outside of Kansas City. Its part-time government leadership is concerned that the expansion of the Roman Catholic Archdiocese of Kansas City into their small town is going to cause problems.

The Archdiocese purchased a derelict home in Mission Woods. The roof had holes in it. Animals roamed the attic freely. But the Archdiocese favored the house for prayer groups, religious meetings and religious education throughout the week. Nonetheless, the Mission Woods city council has twice denied their application citing traffic and parking concerns. 

In the past, the city council has approved more expansive land-use in the same area for secular groups like athletic fields for the local high school and a significant parking lot for the University of Kansas health system. It appears that sports and parking are preferred by the city council, but parking for religious meetings is unwelcome. 

The Archdiocese has taken the appropriate step to file a lawsuit under the Religious Land Use and Institutionalized Persons Act or RLUIPA. It may appear insignificant, but this case gives all the appearances of religious discrimination. Congress understood that city councils could easily hide religious discrimination within neutral rationales and zoning ordinances like traffic and parking. RLUIPA forces a closer look at those seemingly neutral defenses, requiring an agency to demonstrate their fairness.

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

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