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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, 2018
Jun 29, 2018

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 statusand 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 27, 2018

After a picture of high school football players praying over their coach landed on the front page of a local newspaper, activists sent the school district an angry letter threatening to sue. Learn more at FirstLiberty.org/Briefing.


Whether it’s Tim Tebow, Coach Joe Kennedy, or the thousands of players taking a knee together in prayer after a game, prayer seems to be a popular theme around football. 

At Reitz High School in Evansville, Indiana, the players value prayer rather highly, it would seem.  That became controversial only when a picture of the players gathered in prayer landed on the front page of the local newspaper. 

Activists sent the school district an angry letter, threatening a lawsuit should school officials refuse to take action.  According to them, the coach was violating the law because the picture showed him surrounded by his football players and everyone appeared to be praying.

But, let’s break down that picture a little closer. Yes, the coach was in the center, surrounded by his players, but it clearly shows the players, with bowed heads and hands laid on the coach, led by one player who’s lips are forming the prayers. The players were praying for their coach.

Activists would have this coach stop up his ears and run screaming from the scene of this religious activity.  But, common sense—and the Constitution—would call this hostility to the free exercise of religion by the players. Students have a first amendment right to pray for their coach and the school cannot legally stop their religious expression.

Thankfully, that’s precisely what school officials told the activists.

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

Jun 25, 2018

The Bladensburg WWI Veterans Memorial was erected to honor 49 veterans who gave their lives for their nation—but one group is suing to tear it down. Find out why: FirstLiberty.org/Briefing.


In 1925, the Bladensburg World War I Veterans Memorial was erected to honor the 49 men of Prince George’s County, Maryland, who gave their lives in WWI.  It stands outside of Washington, D.C., in the median near the National Defense Highway. This memorial—one of the oldest memorials on U.S. soil to honor the fallen of World War I—has stood without complaint for nearly a century.

For the first time in over nine decades, the American Humanist Association voiced a complaint.  They filed a federal lawsuit seeking to topple the memorial because those who erected it chose the shape of a cross to honor the fallen. 

One of the mothers who supported the memorial early on noted to her senator that her son died and was buried in Europe.  Though she could not visit his grave there, she said, she considered the Bladensburg World War I memorial to be her son’s grave marker close to home. 

First Liberty Institute, along with our volunteer attorneys at the law firm of Jones Day, represents the American Legion who erected the memorial in 1925.  This memorial was erected to honor heroes who gave their lives in defense of freedom. To tear this memorial down now would not only desecrate their memory, it would demonstrate a level of hostility to religion that our Founding Fathers warned against.

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

Jun 22, 2018

Ethicists are recommending that Canadian doctors should not be allowed to opt out of providing services to patients, even if it goes against their conscience. Learn more at FirstLiberty.org/Briefing


A recent article out of Canada reports that ethicists are recommending that conscience laws be modified for the medical profession. 

The argument suggests that physicians should not have the right to opt out of providing such services as prescribing contraceptives when a patient requests those services.  According to the authors, “Doctors must put patients’ interest ahead of their own integrity.  If this leads to feelings of guilty remorse or them dropping out of the profession, so be it.”

That is truly shocking language that we should take note of, especially since, as the article in the National Postpoints out, every country in the civilized world recognizes at least some form of conscientious objection.  Not only do the authors suggest that certain professions should be closed to those whose integrity would require the abandonment of the conscience to practice, it fails to understand what conscience is.

The reason we provide protections for the exercise of conscience is because people should not be made by the government to make their conscience optional.  As Dr. Robert George of Princeton University has put it, “The right of conscience is a right to do what one judges oneself to be under an obligationto do.”

We will see whether Canada takes up the proposal by its professors, but south of the border, we must be vigilant that we never permit the government to make optional what our Creator has made obligatory.

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

Jun 20, 2018

Former NFL players, Steve Largent and Chad Hennings along with two Seattle high school coaches filed friend-of-the-court briefs in support of Coach Kennedy’s right to take a knee after games. Learn more at FirstLiberty.org/Briefing.


You may be familiar with Coach Joe Kennedy, the high school football coach at Bremerton High School who was fired for taking a knee in silent prayer after the game.  Recently, he received support from a few other football players and coaches.

First, Steve Largent, a retired Seattle Seahawk and Hall of Famer, and Chad Hennings, three-time Super Bowl champion with the Cowboys, explain to the court how football coaches were a positive influence on their lives, contending that Bremerton’s actions restrict free speech and impair coaches’ ability to serve as role models and mentors to their students.

Hall of famer or not, we should all seek to defend the right to free speech. It’s central to our American identity as a diverse, pluralistic society, where we foster the free exchange of ideas.

Second, from two football coaches at Garfield High School in Seattle.  These coaches gained national media attention by joining their team in kneeling during the national anthem to protest racial injustice. In their friend-of-the-court brief, the coaches ask the court to affirm that the First Amendment protects the rights of public employees—including football coaches—to private expression.

If the Constitution protects the right of a football coach to kneel to protest injustice, it certainly protects the right of Coach Kennedy to kneel in prayer.

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

Jun 18, 2018

Despite the numerous assertions that students may not talk about their faith in public schools, the Supreme Court has consistently ruled differently. Learn more at FirstLiberty.org/Briefing.


Michael Chandler, a vice-principal in the DeKalb County school system, did not like the law passed by the Alabama legislature that would permit religious speech to occur on public school property.   

Before the United States Court of Appeals for the Eleventh Circuit, he argued that any religious speech—even student-initiated religious speech—that occurs in the public schools isstate speech and, therefore, a violation of the First Amendment’s Establishment Clause.  The circuit court disagreed, holding that for the state to be anything but neutral toward student religious speech it would be hostile to the free exercise of religion.

At about the same time, the Supreme Court of the United States decided a separate case involving students praying over the PA system before a public school football game.  So, the Eleventh Circuit reviewed Mr. Chandler’s case a second time.

But, nothing changed.  The Eleventh Circuit said that, when the state is neutral toward religion, the Establishment Clause is satisfied and private, religious speech does not need to be censored by the state. But, there’s also another clause in the First Amendment.  As the court concluded, “The Free Exercise Clause does not permit the state to confine religious speech to whispers or banish it to broom closets. If it did, the exercise of one’s religion would not be free at all.”

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

Jun 15, 2018

The city of Sinton, Texas passed an ordinance that prevented a halfway house, ministry conducted by a pastor and ex-con, to run within 1,000 feet of any church. Learn more at FirstLiberty.org/Briefing.


In 1998, Pastor Richard Barr started a halfway house ministry in his hometown of Sinton, Texas.  The idea was to offer housing, biblical instruction, and counseling to probationers and parolees as they prepared to transition back into civil society.  For Pastor Barr, an ex-con himself, this was more than a ministry; this was personal. 

Barr ran the in-home ministry to ex-cons from his own home, located just a few feet from his church in Sinton.  Things were going smoothly until about a year later when the city passed an ordinance preventing halfway houses within 1,000 feet of any church, school, park, or residential area.

The City of Sinton, at the time, was less than 2.2 miles square consisting of less than 6,000 residents.  There was no place else for Barr to run his ministry.  The city fathers had literally run him out of town with this ordinance—a fact they were later to admit was intentional.

First Liberty Institute represented Pastor Barr and his ministry.  We argued that the city violated the Texas Religious Freedom Restoration Act by substantially burdening his free exercise of religion without a compelling justification. The Texas Supreme Court agreed and invalidated the ordinance as to our client.

Barr’s case is yet another example of how a state’s RFRA protects a small ministry seeking to do good to his community from the overbearing hand of government.

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

Jun 13, 2018

In Cutter v. Wilkinson, the Supreme Court has rightly strengthened our national commitment to religious liberty for both religious organizations and prisoners. Learn how the Supreme Court did so at FirstLiberty.org/Briefing.


On past episodes, we have discussed RLUIPA, the Religious Land Use and Institutionalized Persons Act.  It’s the law with the funny name that protects both the way in which religious organizations use their property and the free exercise of religion by prisoners during their incarceration.

Soon after President Clinton signed the law in 1999, several inmates employed RLUIPA to challenge the failure of the corrections system to accommodate the religious practices of inmates from nonmainstream religions.  On appeal to the United States Court of Appeals for the Sixth Circuit, RLUIPA was invalidated as a violation of the Constitution.

The Sixth Circuit reasoned that RLUIPA, “impermissibly advances religion by giving greater protection to religious rights than to other constitutionally protected rights” and, by so doing, the statute might just “encourage prisoners to become religious in order to enjoy greater rights.”

The Supreme Court of the United States unanimously reversed that decision.  Writing for the court in Cutter v. Wilkinson, Justice Ginsburg explained that RLUIPA “fits within the corridor of the Religion Clauses [of the First Amendment]” and that it rightly “alleviates exceptional government-created burdens on private religious exercise.”

These “government-created burdens” on religious liberty are the right targets for Congressional action. Whether a prisoner seeking to exercise his faith, or a religious organization being unjustly run out of town by a county commission, RLUIPA strengthens our national commitment to religious liberty.

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

Jun 11, 2018

The Religious Freedom Restoration Act requires a state to provide a compelling justification before it may substantially burden the free exercise of religion. But, just what is a substantial burden? Learn more at FirstLiberty.org/Briefing.


The Religious Freedom Restoration Act requires a state to provide a compelling justification before it may substantially burden the free exercise of religion. But, just what is a substantial burden?

In 1963, the Supreme Court said that putting someone to the choice of “following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand,” is a substantial burden.

The United States Court of Appeals for the Fifth Circuit explained in 1988 that for a city to force a house of worship to move outside city limits and forbid ministry-owned property to be used for religious services substantially burdens religious liberty.

The Eleventh Circuit, in 2004, explained that, “a ‘substantial burden’ is akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly” and can result “from pressure that tends to force adherents to forego religious precepts or from pressure that mandates religious conduct.”

In 2007, the First Circuit defined “substantial burden” as “one that ‘puts substantial pressure on an adherent to modify his behavior and to violate his beliefs.’”

Our country’s longstanding dedication to freedom carefully protects the right of citizens to freely exercise their religion free from a government-imposed substantial burden.

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

Jun 8, 2018

After months of fighting Bernard’s Township zoning laws, the Islamic Society of Basking Ridge New Jersey was finally granted the right to build their mosque. No matter the religion, city governments cannot intentionally throw up obstacles to religious organizations. Learn more at FirstLiberty.org/Briefing.


3.25million 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 6, 2018

Houston health care company fired young Catholic immigrant, Alexia Palma, for being unwilling to promote contraception. Learn more about Alexia’s story at FirstLiberty.org/Briefing.


Alexia Palma had a rough childhood, but her grandparents introduced her to the Catholic faith where she found both meaning and comfort.

After college, Alexia found a job working as a health educator in a health clinic located in inner-city Houston, Texas. She taught courses on general nutrition, high blood pressure, glucose intolerance, diabetes, a series of classes on becoming a mom, and several others.  One of the other courses was a class on family planning in which Alexia would be required to teach about birth control.  That presented a problem, since her Catholic faith morally opposes birth control.

She voiced that concern to her supervisors, and they quickly arranged a simple accommodation, recognizing that this course was less than 2% of her job and accommodating her religious beliefs did not present an undue hardship on the company.

That worked for 18 months, until new management took over.  The new management ended the accommodation, its vice-president told her that employees are required to “put aside” their “personal beliefs” at work, and insisted that she either do so or be terminated.  Alexia refused and was fired.

First Liberty Institute filed a charge of discrimination with the EEOC on Alexia’s behalf. Federal law requires employers to at least try to accommodate the religious beliefs of their employees—especially when less than 2% of their job requires accommodation.

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

Jun 4, 2018

FFRF (Freedom From Religion Foundation) sent a letter to commanders of the air national guard base in Pease, New Hampshire to demand an end to prayer at official events. Learn more about the letter and how we responded at FirstLiberty.org/Briefing.


Military chaplains have been leading prayer at military events for as long as this country has had a military.  But one group wants the military to silence the prayers of chaplains.

In February of 2017, a group sent a letter to commanders of the air national guard base in Pease, New Hampshire.  The letter, signed by an attorney, had the look and feel of a legal demand letter.  But, while it tossed around legal lingo and cited to a case or two, it stopped short of actually threatening a lawsuit.  Nonetheless, their message was clear: prayer at official events violates the constitution, is “beyond the scope of a government entity,” and is “unnecessary and divisive,” it said.

Our friends at the Chaplain Alliance for Religious Liberty, a group of endorsers that speaks for about half of our armed forces chaplains, asked us to respond. Mike Berry, one of our attorneys and a former Marine JAG officer, calmly explained that the Constitution, federal law, military regulations, and court precedent make it clear that not only maychaplains pray at official events, chaplains are protectedwhen they do. The Air National Guard says the invocations will now continue.

You should visit FirstLiberty.org and read the rest of First Liberty’s letter. Military chaplains play an essential role and should never be censored or prohibited from providing invocations at official military events.

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

Jun 1, 2018

Recently, the Secretary of the Army announced new religious accommodation guidelines: brigade-level commanders may now grant religious accommodations to servicemen and women who wear beards, turbans, or hijabs for religious reasons.  Learn how this will benefit America’s soldiers at FirstLiberty.org/Briefing.


The United States Army is known for its uniform appearance and you’ve probably seen pictures of new recruits sporting a clean-shaven look. 

Recently, the Secretary of the Army announced new religious accommodation guidelines: brigade-level commanders may now grant religious accommodations to servicemen and women who wear beards, turbans, or hijabs for religious reasons. 

Sikhs are expected to see the most immediate benefit. For years, Sikhs have litigated orders to remove their religiously required beards and turbans. The new guidelines should solve much of the unnecessary restrictions previously placed upon those freely exercising their religion by means of grooming requirements.

Retired Army chief chaplain and Southern Baptist minister, Douglas Carver, sees benefit to the Army’s broad protection for the religion of soldiers.  According to Carver, soldiers are prepared to go to battle and, if need be, die.  For soldiers, it is the practice of religion that most often “brings courage and calmness.”

It’s hard to imagine a finer force that protects religious liberty and all liberty on the planet than the United States military. As our servicemembers work to protect our liberty, we ought to do what we can to preserve their religious liberty in service to our country.

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

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