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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: November, 2018
Nov 30, 2018

What does the Fourth Circuit Court of Appeals say about distributing religious materials in public schools? Find out at FirstLiberty.org/Briefing.


Ed McDaniels was a local pastor in Upshur County, West Virginia.  One day, he asked the local school superintendent if he could place Bibles on a table in the local public school.  He didn’t want to hand students anything; he just wanted to set out the material as a resource the students could take if they wanted to.

The school had a policy of allowing the local Little League, Boy and Girl Scouts, 4-H Club, and other community organizations to set their materials on a table.  Students passing by could take the material or simply ignore it.  In a separate policy, the school prevented the distribution of religious and political materials.  Local residents sued the school system, claiming that the policy preventing distribution of religious materials also denied McDaniels access to the community information table.

Eventually, the Court of Appeals for the Fourth Circuit determined that distributing meant physically handing out materials.  In fact, the court explained that, if the school kept the Bibles off of the community information table, it would breach its duty of religious neutrality and, in the words of the court, “evince the hostility toward religious speech that the Establishment Clause does not require and that the Free Exercise and Free Speech Clauses forbid.”

So, look around at your school. Perhaps there’s a community information table waiting to be stocked with Bibles.

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

Nov 28, 2018

When the United Church of Cabot in Vermont asked voters to approve repairs to its historic church building with public funds, they agreed. However, someone raised an objection, but historic church buildings deserve repairs just as much as historic secular buildings. Learn more at FirstLiberty.org/Briefing.


In Vermont, the United Church of Cabot needed repairs.  Specifically, this historic church asked the voters to consider repairing the steeple, stairwell, along with other minor repairs. 

The community uses the building for a variety of meetings and events.  The taxpayers were even asked whether public funds—about $10,000—should be used to pay for these repairs.  When the voters agreed to the project, someone raised an objection.

A Vermont district court enjoined the repairs, concluding that the state’s constitution categorically prohibits the public funding of houses of worship.  But, the Vermont Supreme Court disagreed.  In sending the case back to the lower court, it said that the “plaintiffs will have to demonstrate that painting the church building and assessing its sills is more like funding devotional training for future clergy.” 

Well, that’s a difficult task. If we have learned anything from the U.S. Supreme Court’s decision in Trinity Lutheran it is that our country’s dedication to separating church and state means neutrality toward religion, rather than hostility. If Vermont expends taxpayer dollars on other historic buildings, it is anything but neutral to refuse funding for an historic church building.

The logic that claims that anything religious must be purged from public participation simply because it is religious is simply wrong, it goes against decades of precedent, and destroys our country’s rich heritage of diversity.

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

Nov 26, 2018

First Liberty Institute is stepping in after the Metro system in Washington D.C. rejected an advertisement submitted by the Archdiocese of Washington D.C. for being too religious. Learn more at FirstLiberty.org/Briefing.


The Washington Area Metropolitan Transit Authority, Metro for short, ferries commuters by rail and bus throughout the nation’s capitol.  In addition to commuters, they also carry advertisements.

And, at Christmas time, those advertisements look very Christmasy: there are Christmas gifts pictured, lots of red and green, and not too few holiday puns designed to persuade you to buy stuff.

The Archdiocese of Washington, D.C. also submitted an advertisement.  It pictured a few shepherds and sheep under a starry sky, with the message, “Find the perfect gift” scrolled artfully across the sky.  At the website displayed in the ad, one finds out that the perfect gift is Jesus, “the perfect gift of God’s love this Christmas.”

But, Metro rejected the ad.  Macy’s and other stores plying the Christmas theme were all right, but according to Metro, there are two halves at Christmas: the secular and the religious.  Secular ads are ok, but all religious ads are forbidden. 

Yep,Metro will take Santa, but not Jesus, three French hens, but not the three wise men.  Even the President’s own remarks at the recent national tree lighting could not appear on the side of a MetroBus. 

But, that’s not the law.  First Liberty is submitting arguments to courts in Washington, D.C. explaining that what Metro is actually doing is called, “viewpoint discrimination” and it’s a type of hostility towards religion the First Amendment forbids.

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

Nov 23, 2018

In 2012, the Mt. Vernon City Council received a complaint for opening the meeting with prayer. In an effort to satisfy everyone, the prayer took place two minutes before the meeting officially started but that ultimately caused uproar. Learn more about the case at FirstLiberty.org/Briefing


Back in 2012, as the Mt. Vernon City Council officially gaveled in their monthly meeting, someone offered a prayer. That’s not terribly out of the ordinary. But, something was different this time.  This prayer took place at 7:28.  The meeting officially started at 7:30.  Everyone noticed the change. 

You see the city council had received a complaint from a local atheist questioning and disparaging the practice.  He even told the local press, “Having a prayer of any faith creates an atmosphere of exclusion.”  In response, the council took the prayer off the agenda and moved it ahead two minutes, before official business began.

No one was satisfied. To the atheist, it was still exclusionary.  To the rest, it was one more capitulation of driving religion from the public square. The uproar was so great that the city council was compelled to pass a resolution restoring the prayer to the agenda.

Well, the whole thing was avoidable.  City councils have been opening their official business with prayer since our country’s beginning. The Supreme Court has repeatedly affirmed this tradition, most recently explaining in Greece v. Galloway that legislative prayer is “meant to lend gravity to the occasion and reflect values long part of the Nation’s heritage.”

In other words, cities opening their meetings with prayer are part of who we are as a country.

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

 

Nov 21, 2018

On the First Liberty Briefing this morning: This decorated Air Force Veteran was forcibly removed from a military retirement ceremony because he was going to mention ‘God!’ Learn more at FirstLiberty.org/Briefing.


Oscar Rodriguez is a decorated Air Force Veteran who retired in 2013 after 33 years of service. Oscar was invited by Air Force Master Sergeant Chuck Roberson to give flag-folding speech at a Roberson’s military retirement ceremony—something he has done over 100 times.

Oscar agreed to give his stirring and patriotic speech, but the Air Force Unit Commander at Chuck’s base presented a problem—Oscar’s flag-folding speech included the word “God.”

First, the unit commander tried to prevent Oscar from attending the ceremony. When he was informed that he could not legally prevent his attendance, he told Chuck that Oscar could not give the speech. But like any good Airman, Oscar was not going to abandon his wingman, and he decided to give the speech anyway. And as a private citizen, Oscar is no longer subject to the commander’s authority.

But when Oscar stood to deliver the speech during the retirement ceremony, four senior airmen approached him, assaulted him, and physically dragged him out of the retirement ceremony—before he had a chance to say the word, “God!”

The government has no right to throw a citizen—much less, a 33-year veteran—off a military base because they don’t want him to mention “God.”  The Air Force broke the law and abused its power, discriminating against Oscar—and servicemembers everywhere—who want to mention God in their private retirement ceremony.

First Liberty Institute represents Oscar because no one should be assaulted for mentioning the name of God.

For more, and to learn how First Liberty is defending religious liberty for all Americans, visit FirstLiberty.org.

Nov 19, 2018

Even in jail the free exercise of religion is protected for all faiths. Numerous cases about inmates asserting their exercise of religion from their cells are received each week, some with more merit than others. However, no matter the circumstance, the right to freely practice and exercise religion is protected, even from a jail cell. Learn more: FirstLiberty.org/Briefing.


Each week, I get an email with a list of cases about prisoners asserting their right to the free exercise of religion. I find it fascinating that, even in jail, we protect religious liberty. Here’s just a sampling of the cases I see each week.

In Nunez v. Wertz, a Pennsylvania federal court allowed a complaint by a Muslim inmate to move forward after his complaint asserted that he had been denied the right to wear his pant legs rolled up, except during his religious services.

In Illinois, a federal court allowed an inmate to move forward with his assertion that the prison was not providing him with a diet consistent with his Native American religious beliefs.

In Gambino v. Payne, a magistrate recommended dismissing the case of an inmate converting to Judaism. Apparently, the free exercise clause was not sufficient to protect against his complaint of inadequate privacy in the showers.

Finally, a catholic inmate in California is allowed to amend his complaint, but the court dismissed his original complaint. Evidently, the court was not inclined to let him leave confinement to attend a funeral.

Some cases appear to have less merit than others. Inmates sometimes have little else to do but file lawsuits. Nonetheless, judges take complaints of the denial of religious liberty seriously—even if that denial comes from a jail cell.

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

Nov 16, 2018

One litigant argues that the tax code creates the new religion of “taxism” in violation of the First Amendment. Learn more at FirstLiberty.org/Briefing.


Ben Franklin reportedly said, “There is nothing certain in life except for death and taxes.”  Well, in a 548-page complaint, one man has targeted at least one of those certainties, and it’s not death. 

Terry Lee Hinds contends that the United States Tax Code has violated the Constitution by establishing “taxism,” an institutionalized faith and religion.  Because the tax code has the effect of favoring and even promoting organized religions through tax breaks and other benefits, Mr. Hinds believes the tax code is in violation of the First Amendment.

Well, I suppose this is the sort of case that law students are forced to grapple with, but actually have little effect in the real world.  Some may dream such a lawsuit is the silver bullet to bring down our ghoulish tax system. Alas, Mr. Hinds’ lawsuit will not free us from the taxman’s visit every April 15. 

For one reason, taxpayers have a lot of hurdles to overcome just to bring the lawsuit. Mere allegations—even ones dressed up in the garb of a First Amendment challenge—that they do not like to pay taxes will not be sufficient.

For now, Mr. Hinds and the rest of us will have to continue to pay our taxes and, most importantly, the religious charities and houses of worship that are exempt from them will continue to be exempt.

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

Nov 14, 2018

When the government’s interest in timbering led to the destruction of land traditionally used by Native Americans for religious purposes, the Supreme Court ruled against the Native Americans. The opinion read, “Whatever rights the Indians may have to the use of the [land in question did] not divest the Government of its right to use what is, after all, its land.” Learn more: Firstliberty.org/Briefing.


In 1987, the Supreme Court was asked whether timbering operations within a National Park over a portion of land traditionally used for religious purposes by Native Americans violated the First Amendment’s Free Exercise Clause. 

Justice O’Connor’s opinion in Lyng v. Northwest Indian Cemetery Protective Associationconcluded that “Whatever rights the Indians may have to the use of the [land in question did] not divest the Government of its right to use what is, after all, its land.”

But, not all the justices agreed.  Justice Brennan, joined by Justices Marshall and Blackmun, disagreed.  He reasoned that the timbering in question threatened the “very existence of a Native American religion.”  He concluded on a somber note, “Today, the Court holds that a federal land-use decision that promises to destroy an entire religion does not burden the practice of that faith in a manner recognized by the Free Exercise Clause . . . I find it difficult, however, to imagine conduct more insensitive to religious needs . . ..”

Thirteen years later, Congress would pass the Religious Land Use and Institutionalized Persons Act.  At the least, RLUIPA would’ve required the government to demonstrate that its actions were the least restrictive in pursuit of a compelling government interest.

RLUIPA, like RFRA, insists that government actions substantially burdening the free exercise of religion receive heightened scrutiny.  That protects all of our religious liberty.

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

Nov 12, 2018

The city of Austin, Texas targeted a Christian Pregnancy Resource Center by forcing the ministry to post signs disclaiming the services they did not perform, while pro-abortion groups were not required to post any sign or disclaimer. Learn more about how we fought and won the case at FirstLiberty.org/Briefing.


In 2010, the City of Austin, Texas—a town that takes pride in keeping itself weird—passed an ordinance that targeted pro-life, Christian pregnancy resource centers.

These centers, as you may guess, care for women during their pregnancies, helping them with parenting and other resources, but were, out of conviction, opposed to the concept of abortion.  But, the City of Austin thought that was tooweird and, by its ordinance, forced the pro-life resource centers to post signs at their entrance disclaiming the services they did not perform, while pro-abortion groups were not required to post any sign or disclaimer.

First Liberty Institute filed a federal lawsuit seeking to invalidate that ordinance on behalf of three pregnancy resource centers. The argument was pretty simple: the Free Speech clause of the First Amendment prevents the city governments from compelling the speech of religious organizations like these pregnancy centers and, by requiring the disclaimers by religious organizations while exempting secular organizations, cities violate the First Amendment’s religion clauses.

Well, it took a few years of litigation, but those unconstitutional ordinances in Austin are gone. Cities contemplating the idea of following Austin’s example should be advised that not only will they lose in court, like the City of Austin, you will have to pay our attorney fees for such illegal action.

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

Nov 9, 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

Nov 7, 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.

Nov 5, 2018

To most people, a pay raise suggests the recognition of hard work and appreciation from your company. However, after organizing his fellow law professors into a union, Sheldon Gelman lost committee appointments and soon his wife, Jean Lifter, was fired. Gelman received a raise, but the number caught everyone’s attention. Learn more: FirstLiberty.org/Briefing.


You probably have a similar opinion about pay raises that Sheldon Gelman and Jean Lifter did: they’re symbolic.  Do a good job, and an increase in pay suggests that the company is grateful for the effort.

Gelman and Lifter were law professors at Cleveland-Marshall College of Law.  Gelman organized his fellow law professors into a union with the support of Lifter, his wife, and over the objections of management.  The next Spring, the faculty, Gelman included, received a pay raise, but Gelman lost some committee appointments and, soon after, Lifter was terminated altogether.

One wouldn’t think much of it, but the dollar amount on the pay increase caught everyone’s attention.  It was too intriguing to be coincidental.  The newly organized union faculty received a raise of $666.  Taken alongside Gelman’s loss of committee influence and Lifter’s termination, the numerals seemed to send a message.  Gelman and Lifter sued alleging retaliation against a protected First Amendment freedom.

But, the Unite States Court of Appeals for the Sixth Circuit wasn’t buying it.  There were simple explanations for the pay raise amounting to apocalyptic numbers. And, while Gelman’s union organizing was certainly protected by the First Amendment, there were no facts present to suggest the law school retaliated against him for doing so.

The lesson here is clear: if your paycheck shows the supposed “Mark of the Beast,” don’t assume your employer violated the First Amendment.

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

Nov 2, 2018

Saint Vincent Health Center in Erie, Pennsylvania had a policy for all employees to receive mandatory flu shots unless an employee can provide a medical or religious reason. But, some employees didn’t get an exception, even though they requested one for religious reasons.  Learn what happened to the health center and the employees at FirstLiberty.org/Briefing.


No one really likes getting a flu shot. But, like it or not, for those in healthcare, it’s often  required.

That was the policy of Saint Vincent Health Center in Erie, Pennsylvania: mandatory flu shots for all employees—unlessan employee can provide a medical or religious reason. The policy worked pretty well.  If an employee had an exception, they were given a facemask, which they wore while interacting with patients.  For those religious objectors, this was a great religious accommodation.

But, some employees didn’t get an exception, even though they requested one for religious reasons.  Six of the employees who were denied an exception for religiousreasons were fired.  But, the fourteen employees citing medical reasons were not.

That’s a problem.  The Equal Employment Opportunity Commission stepped in on behalf of the fired employees and now the hospital has to pay $300,000 to compensate the employees for their lost jobs. 

It’s really too bad it had to come to this. The hospital had a great policy and a reasonable accommodation for employees with a religious objection to the vaccine.  But, they didn’t follow their own policy and ended up treating religious employees unfairly.

So, employers, let this be a good reminder: have a policy that accommodates the religious beliefs of your employees…and then make sure you follow it.

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

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