S5, Ep. 25: The crisis in teaching constitutional law

Some troubling trends at the Supreme Court are starting to affect the legal profession and how students in law school approach the U.S. Constitution. As SCOTUS continues to upend decades of established precedent in church-state law, Amanda and Holly discuss what’s changed since they were in law school and the rapid changes in church-state law itself. They look at the views of legitimacy of the Court, and Holly shares specifically what she sees in her work teaching church-state law at Georgetown University Law Center. 

SHOW NOTES
Segment 1 (starting at 01:15): Respect for the Supreme Court in law school

Read “The Crisis in Teaching Constitutional Law,” an opinion piece by Jesse Wegman for The New York Times.

Holly mentioned recent episodes of Respecting Religion that covered:

• Religious accommodation in the workplace (episode 26 of season 4 on Groff v. DeJoy)
• The funding of private religious schools with government funds (episode 20 of season 3 on Carson v. Makin)
• Prayer by a coach on the 50-yard-line (episode 21 of season 3 on Kennedy v. Bremerton)

Amanda mentioned the book Deciding to Decide: Agenda Setting in the United States Supreme Court by H.W. Perry. 

 

Segment 2 (starting at 10:51): Turning points, hypocrisy, and partisan muscle 

Holly mentioned how SCOTUS uses history and tradition and the case of Greece v. Galloway, which we covered in episode 3 of season 5.

 

Segment 3 (starting at 21:26): The differences in the Souter/Stevens/O’Connor era and what it’s like in the classroom today

To read more about the Supreme Court religious liberty cases involving Jehovah’s Witnesses, check out this article by Jane G. Rainey published by the Free Speech Center at Middle Tennessee State University. 

Respecting Religion is made possible by BJC’s generous donors. You can support these conversations with a gift to BJC.

Transcript: Season 5, Episode 25: The crisis in teaching constitutional law  (some parts of this transcript have been edited for clarity)

HOLLY: Hello, Respecting Religion listeners. I’m Holly Hollman, here with Amanda Tyler, and we’ve got a special episode of Respecting Religion coming up soon.

AMANDA: That’s right, Holly. It is hard to believe, but we are now in our fifth season of Respecting Religion, and we are coming up on our 100th episode. We want to celebrate with all of our loyal listeners. And so for our 100th episode, we are going to have a very special event where you can ask us anything. So, please, send us your questions to Respecting [email protected]. And thank you so much for listening.

 

MUSIC

AMANDA: The Constitution says, “We, the People.” It doesn’t say, “We, the nine justices on the U.S. Supreme Court.”

HOLLY: You can see, just from the modern era of church-state law to now, the rapid changes.

 

Segment 1: Respect for the Supreme Court in law school (starting at 01:15)

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’re discussing the crisis in teaching constitutional law. That’s the title of a recent New York Times opinion piece that makes some important observations about trends at the Supreme Court and how they affect the legal profession.

Church-state law, as we call it — that area of law that relates to religious freedom and the relationship between religion and government, which is BJC’s primary focus — is just one area of the law where the Court’s majority has moved to upend decades of established precedent.

AMANDA: And it is an important topic for us at BJC as we work to educate Americans about the proper relationship between religion and government. And we’re often in conversation with other lawyers and advocates. We have a long history of advocacy in the U.S. Supreme Court, and the challenge of increasing political polarization and its effect on courts is very concerning to us.

We thought, Holly, that this article was particularly intriguing, as it hits so close to home for you, since you’re wrapping up the semester teaching The Church-State Law Seminar at Georgetown University Law Center.

HOLLY: That’s right. And I’ve really enjoyed being an adjunct professor at Georgetown for several years now, and we’re going to talk about that experience. But don’t worry, listeners. We’re not going to grade you. We’re not going to have a quiz at the end of this episode.

But we agreed, Amanda, as we saw this article that it does touch on some important points, and it’s a good opportunity for us to take a step back and look at the changing dynamics of the Supreme Court, which also might inspire our listeners to be more active in this area of public policy, even in their own communities.

Our long-time listeners know that we often talk about the changing dynamics of the Court when, as in past episodes, we examine specific cases. We often analyze oral arguments and the decisions, like most recently the cases about religious accommodation in the workplace, funding of private religious schools with government funds, and prayer by a coach on the 50-yard line.

But today we wanted to have a broader conversation since we saw this editorial that relates to these changes and the endeavor of teaching constitutional law.

AMANDA: And this op-ed that we’re going to discuss was written by Jesse Wegman. He is a member of The New York Times editorial board who writes about the Supreme Court, law and politics. He’s also a graduate of the law school at New York University, and he clerked for a federal magistrate judge in Manhattan.

He begins his article this way. “If you attended law school at any time over the past half century, your course in constitutional law likely followed a well-worn path.

“First you learned the basics: the Supreme Court’s power to say what the Constitution means. Then you read and discussed cases that set precedents for different parts of the Constitution — the commerce clause, presidential powers, due process, equal protection and so on. Finally you studied how the Court balances individual liberties against the government’s need to act in the public interest.

“It was all based on an underlying premise that has long bound together everyone involved in the project of training the next generation of lawyers: The Supreme Court is a legitimate institution of governance, and the nine justices, whatever their political backgrounds, care about getting the law right. They are more interested in upholding fundamental democratic principles and, perhaps most important, preserving the Court’s integrity than in imposing a partisan agenda.”

HOLLY: Yeah. I wonder that sounds to many of our listeners who listen to this podcast and perhaps other legal podcasts, where people do not start from those assumptions. And I wondered, Amanda, when you saw this article and read that, you know, how did you think about it? It’s been a while since either of us were in law school, but I wondered if that kind of rang true to your experience. I think it did for mine.

AMANDA: Yeah. Well, so it’s somewhat fresh in my mind, because just this past weekend, Holly, I was back in Austin where I went to law school at The University of Texas School of Law. I was back for my 20th law school reunion.

And, you know, I picked UT Law School in part because of its strong constitutional law faculty, including at the time our friend Professor Doug Laycock who has been such a leading voice and scholar in the field of church-state law.

And for law students — at least at UT Law School when I was there — we all took a survey course in constitutional law as a first-year student, and most of our law school classes were very large. We had 120 people in each section, but for constitutional law, we had a smaller group. We had only 30 people in the section.

And my professor — my law school professor — was also a professor at UT’s School of Government, someone named H.W. Perry, and he had written a book at the time called Deciding to Decide, which was all about the Supreme Court’s process of certiorari and what cases they took. so he was like very technical in some ways about Supreme Court jurisdiction.

But it was a really great frame, again, to learn as the article talks about, about just what is the legitimacy of the Court. How does the Court decide these cases and even decide which cases that they take? And I remember Professor Perry. He had a great way about him, because he knew that many of us came in thinking that we knew a lot more than we really did about constitutional law. You know, we thought that we knew about it, because we’d followed the leading cases in the paper.

And he really wanted us to challenge some of those assumptions. And so he would often play devil’s advocate with us in classes and really push us and try to get us to argue cases that were maybe outside of whatever ideological frame that we had for some of these cases, to really think more deeply about the issues. And it was really one of my favorite classes in law school.

And then I went on to take a number of the higher-level constitutional law classes at UT Law School, and so I think through those courses and things like Speech and Religion Law, Federal Courts, Race and Sex Discrimination, Capital Punishment, and Constitutional Theory, I got an even better look at like how the Court has decided cases over decades and even centuries, and really see an evolution of constitutional theory, and appreciate in some ways how it’s not static.

It changes with the prevailing constitutional norms of the time, and to think about it less about, you know, issue by issue and in a more holistic way, about how all of these theories fit together.

But overall, kind of where you started this, I agree with the premise of the article. I had respect for constitutional law. I had respect for the Supreme Court, and I took its legitimacy, frankly, for granted when I was reading these cases.

Holly, how about you when you were in law school? How did you learn about or think about constitutional law?

HOLLY: Well, first let me say, as I went to law school, I was shaped both by experience thinking about constitutional law because I, like you, Amanda, had experience with this organization before law school, so we already had an appreciation for constitutional law and particularly religious liberty law. So I took that with me as I went to law school and was excited about learning more about this area of law and other constitutional topics.

But I also remember very much thinking about law school as a place to also go and get skills, useful skills, taking the basic courses to understand, to think like a lawyer, but also know that in having these practical lawyer skills, that you could help people with individual issues.

My other experience before law school was working for a lawyer who did domestic law, and so I had this other experience — not thinking about the big questions about sex discrimination and marriage law, but understanding that lawyers can help people in the law as it exists, working through problems, whether that’s divorce or custody or what not, and then kind of seeing that that can lead people, as it did this mentor that I had, into working on reforming the law. So I had both of these experiences going into law school.

But I would definitely agree and put myself in the same category of thinking with these law professors that are mentioned in the article of really coming to the law, particularly constitutional law, with great respect for the Court, and the idea that even though constitutional law changes, that, you know — the Court we can look to to help us as we move in a direction of more liberty and advancements in the law.

And, you know, I could say that, sometimes looking to the Court as a hero in some important ways — in ways that are certainly foreign to many people probably listening to our podcast today as you read that beginning of the article.

 

 

Segment 2: Turning points, hypocrisy, and partisan muscle (starting at 10:51)

AMANDA: So in this opinion piece, Wegman goes on to note various potential turning points. You know, what changed with the U.S. Supreme Court? How did it go from this, you know, pretty universally respected institution to one in which many Americans are starting to question the impartiality and legitimacy of this longstanding institution?

Wegman writes, “Many in the legal world still believed in the old virtues even after Bush v. Gore, the 5-to-4 ruling that effectively decided the 2000 presidential election on what appeared to many Americans to be partisan grounds. But now, the Court’s hard-right supermajority, installed in recent years through a combination of hypocrisy and sheer partisan muscle, has eviscerated any consensus.

“Under the pretense of practicing so-called originalism, which claims to interpret the Constitution in line with how it was understood at the nation’s founding, these justices have moved quickly to upend decades of established precedent — from political spending to gun laws to voting rights to labor unions to abortion rights to affirmative action to the separation of church and state.”

HOLLY: That portion of the article comes on strong, with harsh criticism toward the Court. But that criticism is not at all — really not even newsworthy to us. Right, Amanda? It’s pretty commonplace now for people to view the Court this way, and the article has links to all of these different areas of the law and the kinds of cases that make his point.

AMANDA: You know, I really appreciated how Wegman included Bush v. Gore there, because I remember that case vividly. I was in Washington at the time, working at BJC as a legal assistant. And our offices at BJC are and were at the time right catty-corner behind the Supreme Court, and so we had to walk by the Supreme Court basically to go to lunch or do anything. And for weeks, people were circling the Court, protesting outside the Court as this case hung in the balance.

And that was such a shift, you know, an overnight shift in the way that people were participating or in conversation with the Court, to actually be protesting. And then, of course, as we know, the Court inserted itself into the electoral process and ultimately decided that case. And I went to law school shortly after that, but it did feel at the time like that was a one-off — that that was a terrible departure for the Court but they were just trying to move on, and we weren’t going to have that kind of interference again.

HOLLY: That’s super-interesting, Amanda, that that happened right before you went to law school, but you remember it more for its impact on you, kind of personally being in D.C., seeing how it works, knowing it was a big deal. But it didn’t hold such a huge place in your understanding of the Court or people’s appreciation for the Court as you started law school.

AMANDA: Yeah. I mean, I felt like they did go off the rails in that decision, but then they came back. Right? Then they started working again together as the institution they always had.

HOLLY: Uh-huh.

AMANDA: And so it does feel very different in kind from the, as Wegman puts here, the hypocrisy and the sheer partisan muscle that we’ve seen over a number of years now with this Court.

HOLLY: Yeah. I think that’s similar, I think, to my experience, thinking back as well. Bush v. Gore and that time of the uncertainty of election, just being so disorienting — right? — is so different for our country. Just not knowing who the president was going to be for a while was just such a historic event.

But I would agree that there seemed to be sort of a calming period after that, although we knew that in the immediate reaction, there were many people who felt like this was wrong for the Court to be involved this way and that it sort of began this process of further politicization.

As the author then, though, speaks about hypocrisy and sheer partisan muscle, it feels like a critique that’s really different in kind. Particularly he points to the hypocrisy that links to an article about Mitch McConnell holding up Merrick Garland, the nominee of President Obama for the Supreme Court, and then the partisan muscle that it took to push forward the confirmation of Justice Amy Coney Barrett in such a quick time. It feels like that was a major shift that really affected how people see the courts.

AMANDA: And then having that constituted Court — that engineered Court with this conservative supermajority who then has made quick work of changing all of these precedents — in a way that is very disorienting to people who have come to rely on precedent of these cases and understanding those impacts for the other laws and policies that we live under, to have so much of that change in such a short amount of time has real lasting impacts, not only on society but also on the Court’s legitimacy itself.

HOLLY: The article links to these various areas of constitutional law where you can be reminded of kind of what’s changed in all those areas. Of course, we focus on the changes in church-state law, and we’ve often talked about that. We’ve been particularly concerned with that last point, of upending decades of established precedent with regard to the separation of church and state.

And we’ve seen that just expressed in different ways, a move away from the Court’s emphasis on separation as an important principle of religious freedom that is textually part of the First Amendment and long embedded in our history.

We’ve seen an expansion and how the Court uses history and tradition in new ways. History and tradition have always been part of how we understand the religion clauses, but we’ve seen that in aggressive ways, as in Greece v. Galloway which we have talked about and dedicated an episode to earlier on the podcast.

And then most recently, the abandonment of tests that have these principles that have long been part of religious freedom law, as well as a tendency to see different treatment of religion as invalid discrimination, as opposed to principled reason to treat religion special in a way that protects religious freedom in a historic, American principle way.

AMANDA: Yeah. And I think just — and I can see the law professor in you, Holly, coming out. I’m really distilling these cases into these big points that are really helpful to think about thematic changes in church-state law. And I’m also reminded in the article how Wegman talks about so-called originalism. Right? So here is this one particular constitutional theory that was used quite a bit by people like Justice Scalia in the past and became, I think, a real centerpiece of a lot of more conservative approaches to interpreting the Constitution.

But, you know, peeking under the hood of originalism and how it’s actually been applied in a number of these cases, we see how subjective that test — that that really isn’t an objective test of constitutional law. And when we see abandonment of other tests and expansion of history and tradition, and a cynical person, a realistic person, maybe just an observant person, would look at this Court and say, the Court seems more interested in the outcome, in a particular side winning, than in the actual use of consistent constitutional tests.

And, you know, I think, I have felt that way, not just in church-state law but in some other areas of the law recently, and it is disillusioning to see what had been long held up as this impartial Court — as Chief Justice John Roberts said, “I’m just here to call balls and strikes” — right? — if that ever really was the case. I doubt it, but I think that was the impression. And now it feels more like, Well, I’m just here to make sure the home team wins. And that feels hard and unjust to a number of people.

HOLLY: And that leads the author to say that it has the effect of really lowering expectations for the Court in the next generation. And I think that would make sense — right, Amanda? — given when they entered law school and what they’ve seen, that they would have different expectations. And it makes it a little more difficult to hold the Court in such high esteem.

AMANDA: Yeah. I mean, the students who are entering law school now, many of them, not all — you know, some people come as a second career or later in their life, but many of them were in college when the Senate held up the Supreme Court nominee of President Obama and when President Trump then — or the Senate fast-tracked the nomination of Justice Amy Coney Barrett. And so, you know, they saw it happen politically, and they are taking that understanding and that frame into their studies of constitutional law.

I can imagine a disconnect between the person on the podium and the person in the seat, when you’re trying to impart an understanding of constitutional law, and saying, Well, I’ve seen it with my own eyes, and this isn’t — what I’m learning in this casebook is not matching what’s happening at the Court right now.

 

 

Segment 3: The differences in the Souter/Stevens/O’Connor era and what it’s like in the classroom today (starting at 21:26)

AMANDA: So, Holly, you’re spending time right now during this semester in a classroom, teaching church-state law, an aspect of constitutional law. I’d love to hear about how this matches your own experience. How have you found students reacting as you’re teaching this content?

HOLLY: I think that the article pointed to a couple of things that are true in my experience, as well as in the experiences that you and I were talking about as we entered law school. I think that students still come to law school with an idea that the law is a powerful weapon for justice. They want to understand. They want to be good lawyers for a variety of reasons and often come with a little bit of idealism, even if it is somewhat tapered by the trends that we’re talking about now and the way that they have experienced the Court.

I think that the students that I encounter here in D.C. are especially interested — of course, the ones that I see are in my class — are especially interested in constitutional law, and they know that being here in D.C., they might actually go see the Court in action. They can go over to the Supreme Court to see oral arguments. There are a lot of clinic programs and a lot of connections to the law as it develops.

But the class that I co-teach is called “The Church-State Law Seminar,” and it includes ten sessions of readings with class discussion. You know, it’s a seminar class. And it requires a major paper on a topic of the student’s choice that engages the material in the class and really allows the students to engage more deeply in the class material.

And I would say that students are drawn to this for lots of different reasons: for just the enhancement to know more about constitutional law, Amanda, as you were in the classes that you chose in law school; or maybe they are concerned about the pointed criticism of the changes in law based on their own experience, either as religious individuals or individuals in communities where they’ve benefitted from their understanding of classic religious liberty principles.

But I would say that we have found it is really important to teach the development of doctrine, to start from the beginning and to move forward to understand the cases, the trends of the cases, to think about what was happening in our country at the different times, and that that actually helps the students then understand better how the law works — not only to see these changes in church-state and other law, but to understand, you know, how legal precedent is developed and to see that, yes, political situations and historical events affect constitutional law.

And so it might soften a little bit the cynicism. I’m not sure. Or it might just lead them to think, you know, this Court has always been a political institution. And it may just be a matter of degrees in what we’re seeing right now.

AMANDA: Well, I mean, substantively, I wonder. Some of those trends that you noted earlier about the changes in church-state law as decided by the U.S. Supreme Court, how has that impacted the way that you teach? Has it changed your syllabus? Are you up late at night editing things that you had once taught, and are you changing the way that you’re teaching what church-state law is?

HOLLY: By teaching the development of the doctrine, it really helps the students see the principles at issue and how the current Court has moved away from some of these principles.

Now, it’s important to remember that most of the church-state law comes pretty recent in our country’s history. There were not a lot of cases until the 1950s really, but as the law was developed, we talk about the principles and how they line up with some of the founding era readings and language so that we can kind of bridge that gap between the founding of the country and then the refounding of our country and the case development. So I really find that it’s helpful for people to examine the principles, even while we’re looking at the Court pulling away from some of those principles.

And I would say another thing that’s very interesting about this area of the law that I would agree with in this article that’s really different in degree and that is while the Court always changes and maybe the law always develops, you can see, just from the modern era of church-state law to now, the rapid changes in the most recent years.

AMANDA: Yeah. When I was back at UT Law School this past weekend and knowing that we were about to have this conversation, Holly, I talked to a professor at UT about, you know, do you agree with the premise of the article? How are the changes at the Court impacting how you teach constitutional law?

And, you know, he told me that less than one might think, because he said, we really try to teach students about how to think about constitutional law and not necessarily about black-letter constitutional law. And some of that, I think, is what you’re saying, Holly, is you’re talking about principles. You’re talking about the evolution of the law.

And then he pointed in a particular instance to that period in the late 1940s, kind of when modern church-state law really began, and that there were these series of cases that were brought by Jehovah’s Witnesses who objected to pledging allegiance to the United States flag in a school setting, so parents were bringing these cases on behalf of their children.

And when they first came up to the Court, they all lost these cases. And then within just a couple of years, there were changes in personnel at the Court. There were new members added to the Court, and then some of the members of the Court who had been there changed their mind about these cases. And so within just a few years, these cases all came back up, and then they came out exactly the opposite.

And, you know, he made the point that if that were to happen today, Twitter would go crazy. We’d all — but this was happening in the 1940s. Like basically this is not the first time that the law has evolved. And so, just knowing we were going to have this conversation, what do you think about that? You just made the point that the most recent cases really are different in kind or more expedited than other periods. So I just wonder how you’d respond to that argument.

HOLLY: Yeah. I could see that. And I imagine that different law professors and legal historians could kind of make a case to compare in ways that might point out differences with the author of the article. There were certainly big changes post-World War II. If you think about it, it makes perfect sense. When there’s a war that was so brutal and devastating based on religious and ethnic differences, it makes sense that a Court would be more attuned to needing to protect religious minorities. So that’s an important observation.

I would think that legal scholars and legal historians, you know, might dissect this article in different ways as far as the impact of change and how fast it happened and whether that was based on particular historical events and/or changes in the Court.

What I would say that is striking to me in looking at the more recent cases is the point that the author makes about these members of the Court often deciding in ways that fit so strongly with the harshest or most aggressive part of the Republican Party. That is a claim that really emphasizes this concern about the Court just being a political institution.

And when I think about that, I think about how often, looking at church-state law, people might see changes going from the Warren Court to the Burger Court to the Rehnquist Court to the Roberts Court, and because, Amanda, you and I work at an organization that’s been around so many decades, we can see this kind of move in ways that are maybe less separationist on some of these principles that we think have been good for religious freedom.

But one thing when I think about that, it’s like, you know, is that just a normal shift in emphasis? I think the thing that really stands out to me that is consistent with the premise of the article is that it’s not just the changes we’ve seen from leadership. It’s the changes we saw on the Court from the justices that were nominated and put forth by Republican presidents that now reflect these sharp political differences.

And I say that because I think of Justice Souter, Justice Stevens, Justice O’Connor. All of these justices that were nominated by Republican presidents, you know, held firm to a lot of the principles that have been existent in church-state law for a long time and that we still value. And so the real shift is that the justices, in my mind, now reflect harsher political differences in a way that makes it harder to think about religious liberty law as being principled, nonpartisan in ways that have really been good for our country.

AMANDA: Yeah. In the area of church-state law in particular, I was — before you even said it, Holly, I was thinking about Justice Souter. His views on church-state law did not necessarily reflect President George H.W. Bush’s views on church-state law.

HOLLY: That’s right. It wasn’t even our expectation that that would have to be the case at the time, and his jurisprudence certainly did not reflect a particular Republican perspective.

AMANDA: Right. And that just doesn’t seem to be the case now, that now, despite a lot of posturing at these confirmation hearings, you know what the nominee is going — or you are pretty accurate about how the nominee is going to rule in these cases, based on who appointed them. That is a definite shift.

HOLLY: I think that’s right, that in the era of Justices O’Connor and Stevens and Souter, we were a lot less likely to think that the opinion was going to come out the way the president that nominated them would want or acted politically in other spheres.

AMANDA: So, Holly, I really enjoyed this kind of reflection on both our own legal education and then what it’s meant for you in the classroom. It’s definitely more of an academic episode than we typically have on Respecting Religion.

And so to, you know, kind of broaden the lens here and bring everyone in — whether you’re in law school, have been to law school, or would never even want to go to law school — what are some of the real world consequences for those who are interested in protecting religious freedom for all, who have an expansive view of what it means to protect religious freedom for all and who are concerned about trends happening at the U.S. Supreme Court? What do we do with all this?

HOLLY: I think taking a closer look at this area of law and the underlying principles and the reality of how law develops, even though this conversation has been kind of negative about what we think about the Court, it can also be inspiring for students. I can see them reflecting on their own experience and really being drawn to the historic principles and being drawn to wanting to be part of reviving those traditions.

And they may have to do it in their spare time, in their community activism, in their civic groups. I think often they end up wanting to know their communities better, to take some of what they’ve grown up with, where they experience the world perhaps with more diversity, engaged with different experiences, and really put that together with these principles for religious freedom and think about how they can live them out.

I think another real world consequence is that, as you said, Amanda, we don’t just rely on the Court — certainly not just the federal courts — but that people need to be active at the state and local level, to understand how religious freedom works in their community, to know that, you know, the Court’s not going to save and you can’t just say, That’s wrong, and I’m going to sue you. There’s a real need for people to understand our religious diversity and the principles that can bring people together, to understand the secular nature of our government that has also been favorable to and should continue to be favorable to religious individuals and all their differences.

AMANDA: Yeah. I agree with that. And I also think that, you know, not to be Pollyanna or too much about all of this, but, you know, this is a distinct challenge, and so what are some of the opportunities here? And I think looking back on decades of constitutional law, particularly in our area, we could have taken a more — not just you and me, Holly, but, we, society, — could have taken kind of a complacent look at church-state law and religious freedom principles in general, and thinking that they were being protected in some way at the U.S. Supreme Court.

Now, I’ll note that there’s privilege inherent in me just saying that, and you and I — two white women who are in a majority religion in this country saying that — that some of that is by our own position in society that it felt that way. And I think that other people’s positions in society, the Court has not felt as protective over the years. So I want to note that for sure.

But now, what’s the opportunity? Well, the opportunity is for all of us to say, You know what, the Supreme Court itself is not responsible for protecting religious freedom. We all are. And the Constitution says, “We, the People.” It doesn’t say, “We, the nine justices on the U.S. Supreme Court.” And so it’s all of our responsibility, all of our project, to hold together this American democracy.

And, you know, you make the point about we can’t just say, Oh, we’re going to sue you. You know, I often think when it gets into any legal court, something has gone terribly wrong. So how do we protect religious freedom from the outset? How do we keep things from even going into a litigation standpoint? And that often happens with the way that we interact with government at the local and state level, but also how we interact with our neighbors in building a more pluralistic and free society in every aspect and not just with the courts.

HOLLY: I think for many students and others that learn about the church-state tradition in this country from a legal aspect and how it’s changed, they realize that in many ways, Christians aren’t always doing a good job to ensure that these principles are in place in their own communities. And they might take for granted religious liberty and it kind of slightly being seen and exercised in a way that contains a certain amount of Christian privilege.

And when they realize, Wait a minute; my school or my city council or my state is not even living up to these principles, and as they think more about religious minorities in their community, sometimes they have a greater appreciation for what’s at stake, for what’s being lost, and for the need to re-engage and to have a vision of religious freedom that really serves all and that does not sort of lazily benefit the Christian majority where people might not be so careful to uphold the separation that really protects all.

AMANDA: And part of that challenge is also a call for creativity. Right? How do we imagine the kind of society that we want? Yes, there have been principles and glimmers of it in the past, but it’s never been fully realized. And so how do we bring those principles into an even fuller manifestation for this kind of society that we want to live in — a society that is pluralistic and that celebrates and includes everyone, regardless of all of their identities, including their religious identity?

HOLLY: That brings us to the close of this episode of Respecting Religion. Thanks for joining us. For more information, visit our website at RespectingReligion.org for show notes and a transcript of this program.

AMANDA: Respecting Religion is produced and edited by Cherilyn Guy with editorial assistance from Guthrie Graves-Fitzsimmons.

HOLLY: And you can learn more about our work at BJC, defending faith freedom for all, by visiting our website at BJConline.org.

AMANDA: We’d love to hear from you. You can send both of us an email by writing to [email protected]. We’re also on social media @BJContheHill, and you can follow me on X, which used to be called Twitter, @AmandaTylerBJC.

HOLLY: And if you enjoyed this show, please share it with others. Take a moment to leave us a review or a five-star rating to help more people find it.

AMANDA: We also want to thank you for supporting this podcast. You can donate to these conversations by visiting the link in our show notes.

HOLLY: Join us on Thursdays for new conversations Respecting Religion.