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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, 2020
Apr 27, 2020

Despite doing her best to find a solution that would reconcile her religious beliefs while serving the needs of her community, Justice of the Peace, Dianne Hensley is still under fire for not personally performing a same-sex marriage due to her religious beliefs. Learn more at FirstLiberty.org/Briefing.


Dianne Hensley is a Justice of the Peace in Waco, Texas.  Since the U.S. Supreme Court decision that legalized same-sex marriage, she has been looking for a way to reconcile her religious beliefs while serving the needs of her community.

She knows that her convictions prevent her from officiating gay weddings, but she understands that many of her gay friends do not share that conviction. If she, like most of the local justices of the peace stopped officiating weddings altogether, those without ready access to low-cost alternatives suffer most.

So, she assembled a referral list of wedding officiants, including a walk-in wedding chapel just 3 blocks from the courthouse.  That arrangement worked, until the Texas Commission on Judicial Conduct, without having received a complaint, initiated an investigation.  That resulted in an official “public warning” with likely worse sanctions to follow should she continue.

Surely in 2020, we can find a way to protect those with religious beliefs that prevent them from officiating weddings with which they morally disagree, while also accommodating the marriage of anyone lawfully allowed to wed.

We’ve filed a lawsuit against the Commission, alleging their punishment violates Dianne’s religious liberty.  Rather than punish her, the Commission ought to have recognized Dianne’s effort to balance her faith with the needs of her community — a type of basic, human, and much needed fairness missing in much of America today.

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

Apr 20, 2020

Despite long standing amendments like the Blaine Amendment, religious organizations should be just as deserving of participating in public programs as anyone else. Learn more at FirstLiberty.org/Briefing.


We have discussed the history of anti-Catholic Blaine Amendments on this program before.  If you recall, it was Senator James Blaine who, in the mid-1800’s, proposed language ultimately adopted within state constitutions that prevents government dollars flowing to religious institutions, even to this day.

It’s a curious thing that, in 2020 two organizations, one of whom is charitably motivated because of its secularity and the other by its religious convictions, yet only the secular organization may qualify for participation in public programs.

Government officials need not rely upon the overall ability, educational or professional qualifications, financial stability, or facilities of a religious organization to decide whether it may participate. Rather, they may exclude religious organizations because they are religious organizations. Their religion may be the sole criterion for exclusion.

In January of 2020, the Supreme Court once again heard arguments over the constitutionality of Blaine Amendments in Espinoza v. Montana.  In a friend of the court brief, First Liberty Institute argued that religious organizations are as deserving of participation in public programs as anybody else.

The promise of the First Amendment is — at the very least — that government will be neutral towards religion, welcoming religious organizations to compete in the public square on equal footing with other organizations.

If they are to be denied, let it be for legitimate reasons having not the whiff of religious discrimination. Government should never tolerate the codification of religious bigotry.

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

Apr 13, 2020

Despite both Hobby Lobby and the Little Sisters of the Poor cases, states like California are continuing to try and subvert the Weldon Amendment, and force citizens to violate their conscience. Learn more at FirstLiberty.org/Briefing.


The United States Department of Health and Human Services recently announced through its Office of Civil Rights that HHS is pursuing an enforcement action against the State of California. 

You see, something known as the Weldon Amendment guards against states accepting federal dollars to require those using its health insurance to fund abortion services.

It seems that the State of California has required The Guadalupanas Sisters, a Catholic order of religious women headquartered in Los Angeles to fund abortion services through the premiums they pay in insurance services.

Now, if the State of California fails to provide assurances to HHS that it will end the practice, the federal agency plans to refer the state on for further investigation, if not prosecution.

You would think that, in the years since our Supreme Court decided Hobby Lobby and over the years of litigation concerning the Little Sisters of the Poor that states would begin to understand that they can’t force its citizens to violate their religious conscience.

As Justice Anthony Kennedy wrote in his concurring opinion in Burwell v. Hobby Lobby, “In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law.  For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts.”

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

Apr 6, 2020

The opinions written by judges are important in all cases, but when it comes to religious freedom cases, the words and manner in which a case is written can either expand religious freedom or lessen it. Learn more at FirstLiberty.org/Briefing.


The measure of a federal judge may be what he or she writes.  Or maybe that a judge writes.  Judge James Ho of the U.S. Court of Appeals for the Fifth Circuit never seems to miss the chance.  And his opinions are worth reading.

Take for instance his separate opinion in Horvath v. City of Leander.  While he mostly agreed with the majority’s decision, he raised concerns that the lower court relied upon Employment Division v. Smith, a case often relied on to curtail the First Amendment’s promise of the free exercise of religion.

That led him to articulating the importance of words, pushing back against efforts to reduce the promise of the Free Exercise Clause to the mere “freedom of worship.”  Properly understood, Judge Ho helpfully explains, the Founders intended the First Amendment to “extend beyond mere ritual and private belief to cover any action motivated by faith.” 

Care for the text may even mean that we shed any reluctance to hold government officials personally accountable for violating someone’s religious liberty.  As Judge Ho reminds us, we ought instead to be “concerned about government chilling the citizens-not the other way around.” 

After all, the Constitution is meant to restrain government, not empower it.

The point, for Judge Ho, is that in guarding the text of the First Amendment, we refuse efforts to redefine it into lesser terms while rejecting judicial additions to it. 

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

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