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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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Sep 9, 2019

A lawsuit could once be filed because someone was offended by the fact that a religious monument was in a public area. Now instead of being removed just because someone dislikes it, the monument must be proved unconstitutional, which is much more difficult to achieve. Learn more at FirstLiberty.org/Briefing.


In our last episode, we learned that memorials with religious symbolism bear a “strong presumption of constitutionality,” according to Justice Alito’s majority opinion in The American Legion v. AHA.  But what does that mean?

Well, to fully appreciate the court’s decision, you need to understand how these lawsuits once worked.  Previously, if someone saw what the Supreme Court calls “religiously expressive monuments, symbols, and practices,” a lawsuit could be filed based on little more than the offense of having been exposed to such a thing on public property. 

It was called “offended observer standing” and, as Justice Gorsuch made clear in his concurring opinion, “If individuals and groups could invoke the authority of a federal court to forbid what they dislike for no more reason than they dislike it, we would risk exceeding the judiciary’s limited constitutional mandate and infringing on powers committed to other branches of government.”

Instead, those merely offended by the presence of a religiously expressive monument, symbol, or practice must now rebut the presumption that such religious displays are constitutional.  That’s a far more difficult standard to overcome and one certain to dissuade suits from even being filed. 

Of course, there’s a reason why the court shifted the burden.  On our next episode of the First Liberty Briefing, we will discuss how the Justices are combatting hostility toward religion.

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

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