S4, Ep. 01: Still more to say: Review and updates on last term’s religious freedom cases from SCOTUS
As the Supreme Court opens its new term, Amanda and Holly are back with updates on high-profile decisions and a look at where we are now.
The Supreme Court opened its new term this week, and Amanda and Holly look at where its last decisions are leading us. They provide updates on high-profile decisions, including the praying coach in Washington state who hasn’t returned to work yet and the dilemmas facing religious schools in Maine. Amanda and Holly lament how this Court ignores the distinctiveness of religion, despite religion’s special status in the Constitution. They view the Court as taking a major risk by leaving lower courts without better guidance. Amanda and Holly also weigh in on discussions regarding the Court’s legitimacy and remind us that we can’t just count on the Supreme Court to uphold our rights.
Segment 1: Back after first Monday at the Court (starting at 01:07)
You can contact Amanda and Holly with your thoughts on the show by writing to [email protected].
Amanda was live outside the Supreme Court on the first day of the new term, and you can see that video here.
Amanda and Holly wrote about the Supreme Court this week for USA Today: ‘Pro-religion’? Conservative Supreme Court abandons long-standing religious liberty principles.
Shurtleff v. Boston: Holly and Amanda discussed the oral arguments during Season 3 in episode 8, and they discussed the decision in episode 16.
Ramirez v. Collier: Holly and Amanda previewed the case last season in episode 2, discussed the oral arguments in episode 4, and reviewed the decision in episode 16.
Segment 2: Focusing on the two consequential cases that were overshadowed (starting at 13:27)
Carson v. Makin: Access BJC’s resources here.
Kennedy v. Bremerton: Access BJC’s resources here.
Holly summarized both decisions in our latest magazine: Supreme Court continues to shift religious liberty landscape.
Amanda and Holly discussed this article by Michelle Boorstein for the Washington Post (which includes comments from Holly): Under right-leaning Supreme Court, the church-state wall is crumbling
Segment #3: What do Amanda and Holly make of conversations about this Court’s legitimacy? (starting at 27:46)
See a list of our previous episodes by visiting RespectingReligion.org.
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TRANSCRIPT FOR SEASON 4, EPISODE 01 (lightly edited for clarity):
Segment 1: Back after first Monday at the Court (starting at 01:07)
AMANDA: Welcome to Respecting Religion, a BJC podcast series where we look at religion, the law, and what’s at stake for faith freedom today. I’m Amanda Tyler, executive director of BJC.
HOLLY: And I’m general counsel Holly Hollman. Today we begin season 4 of Respecting Religion, and we’re going to start this season with a discussion about the state of religious liberty law after a very significant 2021 U.S. Supreme Court term.
We’ll discuss what the Court decided last term, provide a few updates, and now that we’ve had a bit of time to recover, we’ll try to put the cases in perspective of how we see the religious liberty landscape changing at the start of a new term and in the midst of so many conversations about this Supreme Court.
As our returning listeners may recall, we recorded our last episode of season 3 at the end of June when the Court handed down its decision in Kennedy v. Bremerton. At that time, we recorded in front of a live audience in Dallas, Texas.
AMANDA: And, Holly, we liked the live record so much that we thought, let’s do it again.
HOLLY: Okay. A little different, though.
AMANDA: Yeah. A little different. We don’t have a live studio audience, but we do have a live audience on Facebook Live, and we are back at home in our Washington, D.C. headquarters. We welcome back our loyal listeners, and we want to give a warm welcome to those who are listening to us for the first time.
HOLLY: Yes. And we did think it’d be fun to do this live today, to see each other and to be seen at the same time in the same room. It is good to know that — it is at least our hope and our plans — that we will be having conversations together in person this season instead of on Zoom as we’ve most often done it, as has been our practice really since the beginning of the COVID era, which began soon after this podcast began.
AMANDA: And, Holly, we do hope that we do have some new people joining us for the first time today, and so it might be a good time for us to reintroduce ourselves.
HOLLY: Sounds like a good idea.
AMANDA: I’m Amanda Tyler, and I have led BJC as executive director now for nearly six years. BJC is a faith-based education and advocacy group. We have been around for 86 years. We are headquartered in Washington, D.C. on Capitol Hill, and we come from the Baptist perspective, and we are carrying out the Baptist defense of religious freedom for all. We do so in the mold of historic heroes like Roger Williams, John Leland, and Martin Luther King Jr., as well as many more.
My background is in law and politics, including eight years working for a member of Congress. I am a native Texan — Austinite to be specific — and while I dearly miss the Tex-Mex and the Longhorns and the singer-songwriter scene, I have to admit I do not miss the crazy politics quite so much.
I’ve lived in D.C. for the last ten years, and on my weekends, I spend time catching up on my podcast listening while I am doing some long runs — I’m training for a half-marathon right now. I also enjoy hanging out with my husband and our 7-year-old son where we spend a lot of time on the Little League field, and I’m hearing way too much about Pokemon these days.
HOLLY: Well, it’s good to hear about your life, Amanda. I am Holly Hollman, also a parent, along with my husband, of two young men. I am a proud survivor, I can tell you, of Little League, so I understand the joys and struggles that you go home to. Thankfully, after enjoying so many sports, mine eventually focused their energy on basketball, which is our family’s favorite, and a sport that I describe as quite sensibly clock- and climate-controlled, which is greatly appreciated by working moms everywhere.
These days I have a lot more free time, and I’m getting to decide how to spend that, my time outside of work, and lately that’s focused on exploring the D.C. arts and restaurant scene.
AMANDA: When my son gets a little older, I look forward to rejoining you on the arts and restaurant scene.
HOLLY: It will come. It will come. More importantly for our podcast listeners, I am proud to be the long-serving general counsel of BJC. Having begun this work at the beginning of the George W. Bush administration, which is how I often think about my tenure here, now on my fourth president ‑‑
AMANDA: Four presidents, Holly! And two Republicans and two Democrats — you have seen a lot.
HOLLY: I have. And you’ve seen a lot, even though you’ve been here less time, you know. Yours has been pretty exciting because you came in at the beginning of the Trump administration.
AMANDA: “Exciting” is one word for it, yes.
HOLLY: That’s right. In pursuit of BJC’s mission to advance faith freedom for all, I direct our legal efforts which include filing amicus briefs, also known as “friend-of-the-court” briefs, and we do that in most of the important church-state cases at the Supreme Court.
That amicus work has been part of BJC’s witness in Washington going back to 1947. It has given us a great opportunity to work with and learn from a variety of outstanding advocates, attorneys, and scholars, and I really appreciate that part of our work.
I also serve as adjunct professor of law at Georgetown University Law Center where I co-teach the church-state seminar and get a huge kick out of working with students.
AMANDA: So as you can hear, we have a lot going on in our professional and personal lives, and on top of all of that, we decided, why not. Let’s start a podcast. So what is this podcast about? Why did we start it? Well, back in February 2020, a very different time and place, we started Respecting Religion because we wanted to provide a more nuanced and respectful forum to talk about religion and the law. We felt like these topics that we work on at that intersection often get short shrift in the public conversations, and we think that they deserve more thoughtful treatment.
HOLLY: Plus it’s a fun format for a lot of people. This is how a lot of people get their news and information these days.
AMANDA: Absolutely. And, you know, one example of what we think deserves a little more thoughtful treatment has to do with the Supreme Court, a topic that we’re going to talk about today. Something we often hear about this Court is that it’s pro-religion or pro-religious liberty. Well ‑‑
HOLLY: Sometimes; sometimes not.
AMANDA: Sometimes not. Right? So I think part of the point we want to make is that a religious winner doesn’t necessarily mean a win for all religions or for religious liberty itself.
AMANDA: And the American public that prizes its religious freedom so much deserves a better understanding.
HOLLY: That’s right. We want to see what’s behind the opinion. How did they get there? Another part of our podcast perspective is reflected in the name of the podcast. The founders designed a federal constitution that banned religious tests for office, and they protected religious freedom with the first 16 words of the First Amendment, that famous language, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”
And, you know, the American approach to religious liberty is one that is highly valued, and it is also famously complex. You know, for one thing, there’s that word “respecting” in the heavily debated “no establishment” provision.
At BJC, we think of religion as being singled out there in the First Amendment because it’s a delicate and distinct matter. It’s of immense importance at the time of the founding and also today, to people of all religions and none. And aside from the legal debates, we want to talk about religion and how we debate and disagree about matters of religion in respectful ways.
AMANDA: Absolutely. And we are really fortunate to get to do that every day at BJC as we interact with others who care about this work and who want to explore it with us. So just a few observations as we sit here, literally sit here together and look out the window. If I crane just a little bit, I can see the Supreme Court Building outside of our window. So we wanted you to see what we see as we look upon the Court as this term starts.
The term started this past Monday, October 3, known as First Monday — the first Monday in October is when the Court always begins its term. And on Monday, I went over to check things out, see what was going on over there.
AMANDA: What I saw, one, I saw that the fence, the security fence, had been taken down. That fence had been put up around the Court at the time of the Dobbs leak and stayed up through the end of the term.
HOLLY: And most of the summer, I believe, so it’s nice to feel more normal, that things are opened up in this beautiful setting.
AMANDA: There was also a lot more activity over there than we had seen over the past couple of years, and that’s because the Court changed its practice and is allowing observers back into the courtroom for the first time in a couple of years, so I saw people lining up, waiting to go in and watch the arguments live.
And, of course, it was an exciting day, because it was the first day for new Justice Ketanji Brown Jackson to be sitting and hearing oral argument for the first time. And last Friday, because of our proximity to the Court, our interns, Elizabeth and Harrison, as well as BJC staff member Danielle and her almost ten-year-old daughter Shahana, they all went over to watch Chief Justice Roberts and Justice Jackson walk down the steps of the Supreme Court, and what an exciting and historic time to be in such proximity to the Court.
HOLLY: And we are lucky to be able to take advantage of history in all its manifestations. We have this front row view. And, of course, there’s a lot of excitement and interest, I’ll say, because the Court again has a lot of important topics on the docket. And last season, we discussed the significant cases that involved religion as they came before the Court. We have episodes overviewing the facts and legal issues in the cases, and then episodes describing what happened in oral arguments, playing clips, reacting to them, as well as reporting on how the cases were decided and what we think about them.
There were four cases that we addressed, and today we mostly want to review the two that were decided by a 6-3 vote at the end of the term, the most consequential ones.
AMANDA: Before we do that, let’s note that religious liberty cases don’t always reflect the usual conservative-liberal divides.
HOLLY: Thank goodness.
AMANDA: Not all cases are divided in the 6-3 manner, and there are unanimous and nearly unanimous decisions, and that was again true last term. There was a unanimous decision in a case called Shurtleff v. Boston, a case concerning the distinctions between government speech and individual speech that arose out of Boston’s practice of letting groups fly individual flags on the city flagpole in front of city hall.
HOLLY: It’s a very interesting case, and as you said, a unanimous opinion that was written by Justice Breyer, his last big unanimous opinion, I believe, before he left the Court. A quick update: We read that after that case was decided, Camp Constitution won its claim to take advantage of this forum that the city had provided, and we understand that a few months later, after the Court’s decision, that Boston did, indeed, fly the Christian flag — which is the flag that Camp Constitution chose to represent their organization — flew that briefly. That was back in August, and we understand that Boston is reviewing its practices and policies, as it should, to make sure that they match with what the City intends for that forum, which is exactly what the Court made clear was important to the outcome of the case.
AMANDA: Another nearly unanimous case coming from the Court last term was Ramirez v. Collier. It was decided 8-1. It was a case involving RLUIPA, or the Religious Land Use and Institutionalized Persons Act. And in that case, the Court required Texas to show why it could not accommodate the religious request of a death row inmate in the execution chamber. A very somber note of update to this case: Just last night, Texas executed Mr. Ramirez, and his pastor, Rev. Dana Moore, was at his side, praying aloud and laying hands on him as he died.
The two highest profile religion cases from last term were released in the last weeks of the term, and both of those cases were decided by a vote of 6 to 3, with the six conservatives in the majority. And while they did receive some attention when they came out last term, we want to revisit them today, because in my conversations talking with people out in communities over the last few months, I’ve found that they were largely overshadowed by the hugely consequential and controversial decision in the Dobbs case overturning Roe v. Wade.
Segment 2: Focusing on the two consequential cases that were overshadowed (starting at 13:27)
AMANDA: The first case to discuss today is Carson v. Makin. The 6-3 Court majority opinion in that case was written by Chief Justice John Roberts, and the Court held that the state of Maine could not exclude religious schools from a tuition assistance program that included private schools.
Unlike prior cases, this was not a program designed to grant broad parental choice in education, what we commonly call voucher programs. Instead, it was a program that was supposed to facilitate Maine’s duty to provide a state-funded education for its population which includes areas that are quite rural and sparsely populated and did not have their own public schools.
Well, one of Maine’s criteria for participating private schools was that they be nonsectarian. That means that they don’t infuse religion into the teaching of academic subjects. And that standard sounds consistent with public school standards. The parents who sued in this case wanted to send their children to private religious schools at state expense, and in Carson v. Makin, the Supreme Court sided with the parents and held that Maine had violated the Constitution, specifically the Free Exercise Clause, by excluding those religious schools from its program.
HOLLY: Right. And this case is significant, because it really marks a decided shift in the Court’s First Amendment jurisprudence from a holding 20 years ago when the Court first upheld a state-funded voucher program that was intended to give parents a broad range of school choices, including religious schools. That was the Zelman v. Simmons-Harris case, decided in 2002, where the Court allowed state funding of religious education that was directed by the parents, and the Court rejected an Establishment Clause challenge to that program.
At the time, the justices did not suggest that the state ‑‑ and that was Ohio; the case came out of Cleveland. They did not say that the state was required to include religious education in this system, so I think it’s, you know, worth noting that in two decades, the First Amendment issue for the Supreme Court has moved from holding that a funding program that provides aid to religious schools for religious education is permissible to now holding, at least in some circumstances, that it is required.
AMANDA: I mean, this is a big departure in the law, Holly, but in some ways, didn’t we see this coming?
HOLLY: Yes, we did.
AMANDA: And that’s because that the Carson decision follows a recent line of cases that have rejected no-establishment principles while holding that the Free Exercise Clause prohibits what the Court has called “discrimination” against religious institutions and government funding programs, regardless of whether the program is designed to avoid government involvement in religion.
HOLLY: In ways that we think are consistent with the Constitution. Here’s where I think we really want to help our listeners understand this kind of recent, more rapid shift in the law. There are two cases to mention that came before Carson. In both Trinity Lutheran v. Comer, a 2017 case, and Espinoza v. Montana that was decided in 2020, the Court rejected states’ efforts to avoid funding religion. One had excluded religious institutions from participating in a grant program for playground improvements, and the other involved a tax credit program to fund private scholarships.
And despite state constitutions in both those cases, despite state constitutions that prohibited tax support for religious institutions ‑‑ that was, of course, to keep the state from being involved in explicitly religious matters, you know, the kinds of things that pervasively religious schools are involved in, teaching about religion and leading religious exercises ‑‑ the Supreme Court held that the states could not exclude these religious entities from these programs, based on their religious status.
Now, that makes some sense and is consistent with a line of cases, and when explained that way, I can see how the Court got there. But in Carson, the Court went further, striking an exclusion that was more clearly geared to avoid state funding of an explicitly religious use, and that is a use of providing a church-run religious education.
Now, to be clear, the Court’s decision does not require states to fund religious schools, absent a program that funds other private schools. But I think it’s fair to say that the decision allows more opportunities for religious institutions to seek government money, and it reduces expectations for the institutional separation of church and state.
AMANDA: And I think what we found most galling was how the Court ignored the distinctiveness of religion and religious education that has historically justified the different treatment of religion and ensured that the state will not interfere in essential religious matters.
HOLLY: I think that is fair. And a lot was left unsaid by the majority. The status use distinction that Chief Justice John Roberts had articulated in Trinity Lutheran did not matter to the decision, and the Court proceeded as if it were an easy case. Of course, the dissent, you know, pointed out why it was not, and we’ve talked a lot about that in our treatment of the case in our publications and elsewhere.
But while the Carson decision, we acknowledge, is a win for those who support access to government funding for religious education, it also presents a new dilemma for religious institutions. That’s because Maine has an anti-discrimination ordinance that applies to participating schools. The religious schools that inspired the litigation in Maine have practices that conflict with the state’s nondiscrimination standards, and they’re unwilling to give them up.
AMANDA: So we’ll be watching to see what happens. I think the full implications of Carson v. Makin are still pretty unclear at this point.
The other major case from the end of last term was Kennedy v. Bremerton. It was decided by the same 6-3 majority. It was handed down just a few days after the Carson decision. Justice Neil Gorsuch wrote the majority opinion in this case, and the Court held that a public high school football coach had a free speech and a free exercise right to pray on the 50-yard line after games, and that the facts did not support a violation of the Establishment Clause as the school district had argued and as the lower courts had found.
HOLLY: This case really has to be understood by looking at it carefully, because there was such confusion about the facts. The record showed that Coach Kennedy had — in the past — had this long practice of integrating religion in his coaching, in his work, including religious speeches in the locker room and prayer gatherings on the field with players and sometimes the other team.
But the Supreme Court’s ruling rested on a narrow set of facts, after the coach had been disciplined and they had kind of worked out some things and he had stopped leading these religious exercises with his players. The Court dealt only with a claim of praying after the game while the players were otherwise occupied. In fact, in that majority opinion by Justice Gorsuch, the Court was dismissive of this contention that the coach’s prayer at midfield ‑‑ that his prayers were a continuation of his practices or somehow an endorsement of religion by the school. Instead, the majority stated, “The contested exercise before us does not involve leading prayers with the team or before any other captive audience.”
You know, viewed on these facts alone, the decision may be explained as simply upholding a line between individual prayer that is protected by the First Amendment and government-sponsored prayer that is prohibited by the same amendment. The decision certainly does not provide explicit support for official school-sponsored religious practices, nor does it support religious exercises by school officials that expressly coerce student participation.
AMANDA: But, of course, that doesn’t mean it’s not an important case, and as you’ve written, Holly, the opinion fundamentally changes expectations about how the government protects religious liberty, and that’s because the majority opinion didn’t engage the important school prayer cases that have provided important guidance to schools for nearly seven decades.
HOLLY: Yes. Most disappointing for us is that it didn’t really address the distinct roles and relative positions of influence of students and teachers or coaches that should matter in this school context and as we urged in a BJC-led amicus brief in the case, which, of course, is available on our website if you’d like to see more about that argument.
One aspect that is very important is that the Court explicitly abandoned the long-standing Lemon test, often used in Establishment Clause cases. That test from a 1971 case has helped avoid government interference in religion by requiring that government actions have a secular purpose and a primary effect that neither advances nor inhibits religion, and it requires that the government avoid becoming entangled with religion.
Of course, the cases play out in complex ways, and sometimes Lemon has been followed, other times it hasn’t. It’s been subject to a lot of criticism. But the Court here abandons it entirely, leaving lower courts with little guidance, other than reference to historical practices and understandings. And in doing so, this Court is reshaping religious liberty without deference to very important principles that have protected religion and religious liberty for decades.
My main conclusion is that whether its approach results in greater conflict over religion or simply more religion in government spheres where audiences are not united by religion seems just something that this Court is willing to risk, and let’s see what happens.
AMANDA: And they’ve risked it by not providing adequate guidance, as you’ve pointed out, to communities on how to resolve these disputes. The case has also been frustrating, because there continues to be a debate about whether it’s fair to say, as Coach Kennedy continues to say, that he was fired from his job. Throughout the litigation, he claimed he just wanted his job back, even though he had moved away from the community ‑‑
HOLLY: And he had been paid while he was out on administrative leave. Yes.
AMANDA: Exactly. Right.
HOLLY: All those discussions.
AMANDA: So as soon as this case was resolved, the school district started to put out the paperwork for him to come back to work. Well, Coach Kennedy seems to have been pretty busy this summer on the speaking circuit. He’s been on the stump with former Vice President Pence. He has not yet reported to duty, so we’re watching as the parties continue to fight about how best to resolve this case, how to get Coach Kennedy back to work as he has claimed he has wanted to do all along.
HOLLY: And we’re just beginning to see what the post-Lemon landscape leaves. Lower courts are beginning to wrestle with what it means to protect against coercion in religious matters, being one of the things that the Court left open, and how much freedom that leaves government actors to express religion and, you know, do religious things at work in government settings.
AMANDA: And we’ll be watching and, of course, talking a lot more, Holly, this season about where these cases lead us. This summer, we saw a lot of good analysis, grappling with these changes, and one particular article that we want to recommend, which came out about a month after the last term was over, was a piece written by Michelle Boorstein of the Washington Post, and in the piece, she talked with a lot of church-state law experts, including you, Holly, to try to understand the conflicts and complexities.
HOLLY: Yeah. We appreciated that, that kind of respectful treatment of this complex subject. And there were a lot of things written that we’ve been able to read and process. But that article was particularly well done in that it talked to a lot of people, and it just hit on some really important and recurring issues. It addresses the sensitivity that these legal changes will have coming out of a public school context and this arena where we thought, you know, there’s been a lot of agreement in how to protect students’ individual religious liberty while protecting against government-sponsored religion.
It also touched on the differences of opinion about what standards will best serve our diverse population, with all our religious differences, you know, and there’s disagreement about that. It cites some scholars to mention the difficulty in defining religion, and that debate has certainly come up at different times in our history. And, you know, there is speculation and differences in opinion about what we are likely to see happen.
What we know from our experience is that there will be different ramifications based upon geography and local culture and people’s willingness to engage constructively in their communities.
Segment #3: What do Amanda and Holly make of conversations about this Court’s legitimacy? (starting at 27:46)
HOLLY: Lastly, Amanda, we should note that as we’ve been considering our work and analysis of these opinions, we’ve also read and been considering, of course, the conversations about the Court’s legitimacy. This has been a topic not totally new but that has become more prominent after the Dobbs case and other decisions about the Court as an institution. Several justices in different venues have been defending the legitimacy of the Court or explaining why it’s being questioned. And I think it’s helpful probably for our listeners just to hear our thoughts on that.
I mean, that conversation is being amplified and expanded, I would say, for a few important reasons. First, there have been changes in the law and changes in cases based solely on personnel changes, and frankly, a recognition of the political circumstances that led to President Trump nominating three justices. So that’s in the background and, I think, an important part of this conversation.
Also, the rapid change in many areas of the law, and we’ve noted some of that in this podcast in religious liberty law. The abandonment of precedents and sometimes what we’ve seen is that the Court is critical of a precedent, and they might ignore it, and then they later abandon it or say it has been abandoned. And I think a lot of this, you know, a lot of these factors when put together do point to this idea that the Court has an agenda, an agenda to reshape the law.
AMANDA: You know, looking at all of those reasons together, Holly, I think the Court’s reputation has taken a hit for good reason, and I’m not surprised that so many are questioning the Court and that the poll numbers show less regard overall for the institution. In a Gallup poll taken in June before the Court overturned Roe v. Wade in the Dobbs decision, only 25 percent of respondents said they had a high degree of confidence in the Supreme Court as an institution. And I think that’s a really sad commentary on where we are.
HOLLY: Well, I agree that there are valid reasons, not just for disagreeing with the opinions but for questioning the Court. That said, I don’t take any pleasure in that, and we are certainly not going to give up our fight or abandon our efforts in the courts. But perhaps more importantly today, as religious liberty advocates, we will continue our work in communities where we should uphold the constitutional values that we treasure, and for us, frankly, our religious values that support pluralism.
AMANDA: I’ve said a few times this summer what this Court’s term shows is that we can’t count on the Supreme Court to uphold our rights. That puts much more pressure on we the people to do the hard work of standing up for religious freedom for all. And BJC is moving full steam ahead in this new landscape. We appreciate our listeners, our friends, and our supporters who are joining us in the fight for faith freedom for all. And, Holly, we are going to have plenty to discuss this season, and we thank all of our listeners for joining us.
HOLLY: Thank you, Amanda.
AMANDA: That brings us to the close of this episode of Respecting Religion.
HOLLY: Thanks for joining us for today’s conversation. For details on what we discussed, including links to the articles we mentioned, check out the show notes.
AMANDA: If you enjoyed today’s conversation, give us a five-star rating, share this program with others on social media and tag us. We’re on Twitter and Instagram @BJContheHill, and you can follow me on Twitter @AmandaTylerBJC.
HOLLY: Plus you can email both of us by writing to [email protected], and you can see a full list of shows on our website at RespectingReligion.org. That’s a new web address.
AMANDA: And if you want to read through this conversation, visit our show page in a few days for a transcript of this live episode.
HOLLY: And take a moment to find out more about BJC and how we’ve been working for faith freedom for all since 1936. Visit our website for a look at what we do and some of our latest projects.
AMANDA: Join us back here on Thursdays for new conversations Respecting Religion.