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First Liberty Briefing

First Liberty Briefing is an exclusive podcast hosted by First Liberty Institute’s Deputy General Counsel Jeremy Dys. In about 90-seconds, once 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: April, 2019
Apr 29, 2019

In March 2019, the Supreme Court denied cert of a case that if left at its current status, would bar religious organizations from a general historical preservation fund program. Learn more at FirstLiberty.org/Briefing.


The white-washed churches of New England, often contrasted against the reds and yellows of fall foliage, have captured the imagination of painters and photographers everywhere.  But, not the Supreme Court of the United States.

In March of 2019, the Justices declined to review an appeal from New Jersey Supreme Court case finding the funding of grants for the historic preservation of these churches unconstitutional.  Such grants allowed local organizations to apply for a grant to repair things like shingles, paint, or mechanical work, but not hymn books, altar pieces, or Sunday school lessons.  

At least a few Justices viewed the denial of these funds to churches as religious discrimination.  A perplexed, and unequivocal, Justice Brett Kavanaugh, writing for Justices Alito and Gorsuch, said in a statement, “Barring religious organizations because they are religious from a general historic preservation grants program is pure discrimination against religion.” 

Indeed, it is difficult to conceive of more unvarnished religious discrimination. The government deciding that religious organizations are ineligible to participate equally in the public square merely because they are religious is precisely the type of religious discrimination the Founders were trying to prevent.  Justice Kavanaugh is absolutely right in declaring this to be “pure discrimination against religion.” 

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.

Apr 22, 2019

The Ninth Circuit Court of Appeals had the last word in our case of Chabad of Irvine, a small Orthodox Jewish congregation in California that has been fighting for their free exercise rights for years. Learn more at FirstLiberty.org/Briefing.


We’ve covered practice of Kaporos on this program before.  If you’ve forgotten, Kaporos is a sacred religious ceremony performed by Orthodox Jewish congregations for several millennia.  In the ceremony, which takes place during the holiest days of the Jewish calendar, the atonement of sins is contemplated through prayer and the kosher and humane killing of a chicken.

But, as we’ve discussed previously, animal rights activists in California sued to force government officials to prohibit the ceremony.  First Liberty network attorneys argued that it is not the role of the government to tell religious communities how to peacefully exercise their religious beliefs.

In fact, over the last few years, First Liberty and network attorneys successfully defended the Chabad of Irvine, a small synagogue in Orange County, California, against two lawsuits brought by activists opposed to kaporos.  But, of course, the animal rights activists appealed the dismissal of one lawsuit to the U.S. Court of Appeals for the 9thCircuit.

Well, about a week after oral argument, the Ninth Circuit came out with its decision.  It’s conclusion?  That the animal rights groups didn’t even have the legal ability to bring the lawsuit in the first place. 

While it was decided on procedural grounds, the court’s decision brings a resounding conclusion to several years of harassment by lawsuit of a peaceful religious practice.

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

Apr 15, 2019

Whether it is in word or deed, senior members of President Trump’s administration are proving to be strong advocates of the importance of religious liberty. Learn more at FirstLiberty.org/Briefing.


Two public appearances by senior members of the Trump Administration show the Administration’s fundamental commitment to religious liberty.  And it’s more than just words.

In answer to a question from a reporter, Secretary of State Mike Pompeo pointed out the administration’s foreign policy when it comes to religious freedom.  He said, “Because it’s at the heart of all the freedoms that every individual should have, right?”

Former Acting Attorney General Matthew Whitaker spoke at length about the importance of the Religious Freedom Restoration Act at the Heritage Foundation on Religious Freedom Day.  He explained, “RFRA promotes authentic tolerance—because RFRA makes a solemn promise to the people of this nation that we can find a place for them, regardless of who they are, and regardless of their beliefs.”

Both of these agencies have backed those words up with action.  The Trump State Department hosted a “Ministerial to Advance Religious Freedom” in 2018 and plans are underway for another in 2019.  The DOJ has issued guidance on religious liberty to all executive agencies, launched its “place to worship” initiative that protects houses of worship, and been active in litigating violations of religious liberty.

Whether it involves matters of foreign policy or domestic relations, it is good to see an executive branch committed to defending religious liberty in both word and deed.

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

Apr 8, 2019

The Establishment Clause of the First Amendment was intended to prevent the government from establishing a religion, not keep religion out of the public sphere. First Liberty argued before the Supreme Court and asked the Court to change its perspective. Learn more at FirstLiberty.org/Briefing.


Many of you have followed First Liberty’s case before the Supreme Court of the United States over the Bladensburg WWI Veterans Memorial.  We hope the case will provide much needed clarity to the interpretation of the First Amendment.

The Framers intended for the Establishment Clause to guard against the government establishing a national church.  Read more broadly, it prevents state officials from coercing the religious beliefs and actions of its citizens.  Unfortunately, as Justice Clarence Thomas has said, this area of the law is “in hopeless disarray.” 

We can lay the blame at the feet of a case from 1971 called,Lemon v. Kurtzman.  That decision has led to variety of confusing, court-created tests. Local officials, not knowing what to do, often ban religion. That kind of hostility to religion is something the Founders never intended. 

We propose an alternative: that the U.S. Supreme Court replace those tests with an alternative more in keeping with what the Founders had in mind.

Unless the state coerces someone into a religious belief or exercise or enacts laws or policies that purport to actually establish an official religion, there is no violation of the Establishment Clause of the First Amendment. 

Passive displays do nothing to coerce anyone into belief or religious exercise.  They just stand there, reminding us of the service and sacrifice of something we would forget if we did not see a visible reminder.

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

Apr 1, 2019

First Liberty has petitioned the Supreme Court to hear the case of Aaron and Melissa Klein, an Oregon family who was forced to shut down their business and fined $135,000 for not baking a same-sex wedding cake. The question now is, will the Court side with Gobitis or Barnette? Learn more at FirstLiberty.org/Briefing.


The right to differ with popular beliefs and opinions has long been an American principle.

Back in the late 1930’s, the Gobitis children had a religious objection to saluting the flag.  The Supreme Court upheld their expulsion in Minersville School District v. Gobitis and that’s when the harassment of America’s Jehovah’s Witnesses took off.

Just a few short years later, the Supreme Court revisited its decision in West Virginia State Board of Education v. Barnette. Justice Jackson’s majority opinion explained that if the Bill of Rights allows the state to compel one to salute the flag, it also permits “public authorities to compel him to utter what is not in his mind.”

So it is with First Liberty clients, Aaron and Melissa Klein. Can the state compel small business owners to speak a message contrary to their religious beliefs?  That’s a question we hope the Supreme Court might soon answer.

And, we hope that answer is consistent with Justice Jackson’s in Barnette when he wrote, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Let’s hope the Supreme Court protects America’s small business owners and their First Amendment right to differ.

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

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