S6, Ep. 16: What’s going on with the Supreme Court, a new travel ban, and the military in L.A.?

With decisions from the Supreme Court, a new travel ban, and a federally militarized presence in Los Angeles, there are many activities in our world that deserve attention. Amanda and Holly discuss several current events in this episode, including the revival of one of the ugliest policies of the first Trump administration. Plus, they review the unanimous decision in a Supreme Court case about religious exemptions to employment law and discuss the Court’s decision not to hear a case involving the protection of sacred land. 

SHOW NOTES
Segment 1 (starting at 00:37): Recent and still-developing news

Holly and Amanda discussed changes in policy about sensitive locations in S6, Episode 10.

We discussed the case of Kilmar Armando Abrego Garcia in a special episode released April 21 with Melissa Rogers. 

We discussed the harmful school voucher provision in the “big beautiful bill” during their live episode, released May 27. Hear the episode at this link or in your podcast feed, or watch it on YouTube.

Join BJC for a webinar on the problems with the budget reconciliation bill on Monday, June 16, at 2:30 p.m. Click here to register for the event, which is hosted by BJC, NETWORK Lobby for Catholic Social Justice, and Bread for the World.

Read more about the fallout from Rep. Mary Miller referring to a Sikh prayer leader as a “Muslim” and erroneously claiming our country was founded as a “Christian nation” in this article by Andrew Solender for Axios: Rep. Mary Miller faces bipartisan fury over “ignorant” Sikh comment

In memory of Dr. Walter Brueggemann, listen to his 2019 conversation with Amanda on our podcast series exploring the dangers of Christian nationalism: Theological view of Christian nationalism with Walter Brueggemann

 

Segment 2 (starting at 13:17): The new travel ban

After President Trump issued his new travel ban on June 4, Amanda released a statement you can read on BJC’s website: BJC condemns new travel ban as ‘state-sanctioned discrimination’

Visit BJC’s website to read more about the case of Trump v. Hawaii and the history of the travel ban.

Support the NO BAN Act: Click here to use BJC’s form to contact your members of Congress about the legislation.

 

Segment 3 (starting 20:09): The decision in Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission

Supreme Court decisions we are waiting for include:

• Mahmoud v. Taylor (Hear a discussion of oral arguments in S6, Ep. 15)
• U.S. v. Skrmetti (Hear a discussion of oral arguments in S6, Ep. 06)

The case Apache Stronghold v. U.S. involves the sacred land of Chí’chil Biłdagoteel — loosely translated in English as “Oak Flat.” Read more about the denial of cert on BJC’s website: U.S. Supreme Court declines Oak Flat petition, allows for federal transfer of sacred land to mining company. Amanda and Holly talked about this issue on a podcast back in 2022: S3, Ep. 17: Religious freedom and our Indigenous neighbors: Save Oak Flat.

Amanda and Holly talked about the oral arguments in Catholic Charities Bureau v. Wisconsin in Ep. 12: Back to SCOTUS: Regular business in disturbing times

Respecting Religion is made possible by BJC’s generous donors. Your gift to BJC is tax-deductible, and you can support these conversations with a gift to BJC.

Transcript: Season 6, Episode 16: What’s going on with the Supreme Court, a new travel ban, and the military in L.A.? (some parts of this transcript have been edited for clarity)

 

HOLLY: As harsh as this Court has been on the Establishment Clause, meaning seeing it in a diminished light, kind of shrinking it, it still exists. It still is a fundamental part of the First Amendment.

Segment 1: Recent and still-developing news (starting at 00:37)

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. It’s June, and that means the Supreme Court is releasing its final decisions of the term, and we have one to talk about today that was recently released about religious exemptions and employment law.

But this month has also been a busy one for the Trump administration and those that react to it, releasing a new version of the troublesome travel ban recently, a policy that we saw during the first Trump administration.

AMANDA: Hi, Holly.

HOLLY: Hi, there.

AMANDA: Good to be back with you, and we have a lot to talk about. I think that, you know, this episode is going to be probably a lot like a lot of the episodes we released this month in which it’s going to be a bit of a grab bag, because there’s so much that we really need to update listeners on and we wanted to talk through together on the podcast. So I think we should kind of just get right into it.

The case we’re going to discuss today is one that we did discuss on the podcast earlier this season. It’s the Catholic Charities-Wisconsin case, and as we discussed when we reviewed oral arguments, it is a rather technical decision, and it was — is one that the Court released a unanimous opinion on, 9-0 opinion in favor of Catholic Charities.

So we will get into that, but before we get there, we wanted to talk about some of the other news that is making headlines. The first one really continues to be an emerging story that happened over the weekend. We’re recording on Monday, June 9, and over the weekend, President Trump called in the National Guard in L.A. over the objections of Governor Gavin Newsom.

It is a developing situation and one that is very concerning, particularly for the protesters on the ground and the people of L.A. We see some kind of tensions and — in some cases — violence escalating after the National Guard has been called in.

According to CNN, about 300 National Guard troops are currently on the ground. It’s the first time the president has called in the National Guard without a state’s request or consent in many decades, and we’ve also heard that the president is preparing to deploy about 500 Marines.

Now, Governor Gavin Newsom has said that the state will sue the Trump administration over this deployment. Both he and L.A. Mayor Karen Bass have called these actions inflammatory.

So, very concerning to see this clash between militarized troops and civilians in the city of L.A. and particularly when, at least from reports we’ve heard, that most of these protests have been peaceable — just a very concerning direction that has taken very quickly for President Trump to respond with this aggressive action.

HOLLY: Yeah. We know that this administration’s focus on immigration and particularly announcing their desire to have mass deportations would have huge consequences, and we’ve talked about those. We’ve talked about the change in policy toward sensitive locations and other, you know, real changes of norms in how we enforce immigration laws as a country.

And, I think people are on edge — rightfully so — and makes it very challenging to have peaceful protests and, as you note, Amanda, we can see an escalation with this militarization of keeping the peace, you know — ostensibly keeping the peace, which, of course, is a legitimate law enforcement role — is to keep the domestic peace — and that’s what we count on law enforcement for. And it’s not typically what we use the National Guard for.

So very concerning to think about calling up the military against — against ourselves, basically.

AMANDA: And against ourselves and against, in many cases, people of faith. You know, I’ll note that there are a lot of people who are compelled because of their faith to speak out against what they view as wrongful actions by the government. And we’ve seen, in communities across the country, clergy and other faith leaders bringing their faith to bear to some of these protests.

So, of course, regardless of faith, regardless of motivation, it’s important for us to defend the right of peaceful protest, the right to oppose the policies of the government. That is a norm of liberal democracy and something that I think we see very much threatened with this action and other actions that we’ve seen over the course of several months now with the Trump administration.

So just to highlight again, this is a developing story but something that we’re watching closely.

HOLLY: Well, it’s something we needed to note in the context that we’re in. As we talk about the end of the Supreme Court term, we do not get a break from legal news on the front pages of all our newspapers. I mean, there are developments all the time with this administration doing things that haven’t been done before or in a long time, and, you know, the legal questions arise.

And speaking of those kinds of legal changes, there have been some developments in the Kilmar Armando Abrego Garcia case that has been in the news. We talked about his case earlier when we had our guest Melissa Rogers on the show, talking about the very unusual circumstance of deporting someone in the midst of proceedings and in ways that the Supreme Court said needed to be changed — that the administration must facilitate his return. He has been returned, and now the legal story continues, specifically about charges against Mr. Garcia.

AMANDA: Yeah. In that case, just to review very quickly, the administration wrongfully deported Mr. Abrego Garcia to the one country that the U.S. government and a judge had previously said he could not be deported to, and that was El Salvador, doing so without due process

If he had had due process in that case, he would have had an opportunity to make that argument and perhaps would not have been removed at all. And then we heard for weeks the administration say — in what appeared to be a farce — that it was powerless to effectuate or facilitate his removal. And so now we understand evidently it wasn’t so impossible, and he is coming or is already back in the United States. And they have an indictment, a criminal indictment, with charges.

And so now what we’ll see is kind of what this looks like when due process is actually allowed to happen in this case and when he actually does receive his due process rights. Again, we know that for many people who are subject perhaps to removal under this administration’s policies, they may eventually be removed.

But what is unlawful is to do so without due process rights, and so we’ll see if that can happen in this case. Of course, it doesn’t undo all of the harm that has already happened to Mr. Abrego Garcia and his family.

HOLLY: Due process is an essential part of our government, the rule of law in our country, and it’s unfortunate how many times now we have to talk about these kind of very basic ideas, including the very basic idea that we are not founded as a “Christian nation.”

And unfortunately, last week we had a member of Congress question someone who gave a prayer in the House of Representatives. And we’ve talked about legislative prayer on this podcast and other times before, Amanda — this process where members of Congress have someone from their district to come and give a prayer for the Congress, not leading the nation in prayer, but for Congress.

And Representative Mary Miller, Republican from Illinois, took issue with the fact that the prayer was led by a Sikh individual and, in doing so, called him a Muslim. So she got his religion wrong, very disrespectful comment, and claimed that we are a “Christian nation.”

She quickly removed some of what she said, and I think that conversation will be ongoing as far as education about our country and the rights of Sikhs and Muslims and all others being equal in their ability to participate in this practice, this tradition of our country.

AMANDA: We’ll include a link in the show notes to an article from Axios.com, titled, “Rep. Mary Miller faces bipartisan fury over ‘ignorant’ Sikh comment.” I’m horrified that this happened, and it is at least a small consolation that there was immediate bipartisan pushback to it, to distance themselves from her comment and a comment that she eventually took down, in fact — perhaps recognizing, you know, how wrong it was to do so.

Speaking of Congress, we are continuing to watch the budget reconciliation bill, and that bill is now pending in the United States Senate, facing bipartisan opposition to different provisions in it. And we’ve particularly focused [on] — on this podcast — trying to draw attention to the very harmful national school voucher provision that is included in this bill.

And we wanted to let our listeners know that BJC is co-hosting a webinar next week to talk more about the bill and what you can do about it. So that webinar is on Zoom, is this coming Monday, June 16, at 2:30 p.m. Eastern time. The webinar’s hosted by BJC and in collaboration with NETWORK Lobby for Catholic Social Justice and Bread for the World, and we will be discussing many of the problems with this large bill, including threats to public education, Medicaid, Medicare, and SNAP benefits. It’s a free webinar to attend, and we’ll put a link in our show notes so you can sign up to attend there.

Finally, I wanted to just pause for an in memoriam moment. You know, we had one of these recently for the passing of Associate Justice David Souter from the U.S. Supreme Court, and last week we learned of the passing of Dr. Water Brueggemann, a noted Old Testament scholar and theologian, and someone that many, many are grieving the loss of this week.

I personally — and people in the BJC community — drew on not just his brilliance but his generous spirit and being willing to collaborate and engage with us, particularly in the last few years, in understanding the theological problems with Christian nationalism from his perspective. I had the chance to interview him for a podcast series back in 2019.

I think we can link to that in the show notes as a way to remember him, but also just that one conversation so informed the way that I thought about this. I’ve quoted him so many times in my public speeches and in my sermons. And when I just think of that one small slice and think about the impact that he had — he was the author of more than a hundred books, including probably his best known one called The Prophetic Imagination that I know is an inspiration to so many, particularly right now with so many threats to democracy and the need for a prophetic witness in our world.

HOLLY: I’m so glad, Amanda, you had that experience with him. I’m actually in a book group at church now, reading one of his books, and so we have been talking about him. And apparently that’s part of his reputation, not only to be such a scholar of the Hebrew Bible, but to be generous with people, to interact and engage with his audiences, so just the epitome of a teacher — right? — to do such scholarly research but then to engage with students and conversation partners. Dr. Brueggemann really led the way.

 

 

Segment 2: The new travel ban (starting at 13:17)

HOLLY: Last week we also saw President Trump follow up on his January 20 executive order about national security and the entry of foreign nationals. That was one of many executive orders that he issued at the very beginning of his administration, that seemed to sort of foreshadow more executive action to come that would restrict people coming in to the United States.

And, indeed, last week, he issued an executive order called, “Restricting the entry of foreign nationals to protect the United States from foreign terrorists and other national security and public safety threats.”

On a close read of this, I think it’s fair to say that this is an extensive travel ban, and it is being met with the alarm that you would expect, because it is a significant change in our immigration policy and how our country has dealt with the outside world.

Of course, national security is of utmost importance, but this appears to be a continuation of this administration’s view that certain countries — certain people — are not allowed to enter the country and partake in our system of immigration and refugee settlement.

AMANDA: Yeah. And even beyond that, even to visit loved ones — right? — or to come for important —

HOLLY: Yeah. Total restriction.

AMANDA: — religious events or family celebrations or the like. And —

HOLLY: That’s right.

AMANDA: — you know, we responded as an organization the same way that  we responded to similar policies from the first administration, to say that, you know, they’re using national security language in justification, but it’s really just a cover for bias, bias that’s based on faith, race, and national origin, and that that ends up being state-sanctioned discrimination.

You know, I think part of what felt so outrageous about this iteration of the travel ban, one, is the breadth. Right? It applies fully restricting entry from 12 countries. I’ll just name them here: Afghanistan, Burma, Chad, Republic of the Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan and Yemen. It partially restricts entry from another seven countries: Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan and Venezuela.

So very, very broad application. Also the timing. You know, the administration had been working on this for months. Candidly, we had been expecting to respond to this for months. So why last week? Why all of a sudden? Well, it was immediately after a tragic incident in Colorado where there was an attack on a Jewish community — from someone, by the way, not from any of these countries.

But President Trump actually invoked that tragic event as a reason for doing this. And that seemed to us, as we said in our statement, opportunistic and misleading and, again, just furthering this state-sanctioned discrimination. Now, I think something that has been troubling to a number of people is we have not seen the kind of public outcry in response to this version of the travel ban that we did in the prior [Trump] administration.

I think there are a number of reasons for that, but one thing is that no matter how discriminatory this policy is, no matter how harmful, no matter the impact, in some ways it very well may be legal in the strict sense of the word, and that’s because of a court case from the U.S. Supreme Court called Trump v. Hawaii, where a majority of the Supreme Court basically gave the president broad powers to do immigration moves like this.

Holly, we at BJC spoke out forcefully against that opinion at the time. I have continued to compare it in many ways to a Korematsu type decision — a decision that I think in the future we will look back on, as we do the discredited and overturned Korematsu decision, as a blight on our constitutional history, and I continue to think that that’s the case here.

And so we did issue a forceful statement against it, and even if it is strictly legal — and I think it will be challenged —

HOLLY: For sure.

AMANDA: — but even if that is found to be the case, it doesn’t mean it’s right. Not everything that’s legal is right, and we’ll speak out. And there are also things that we can do, including urging Congress to pass a law that would make such discriminatory policy impossible in the future. And there is a law pending called the NO BAN Act.

HOLLY: Yeah. This just happened, and many people are looking into this new policy and the ways that it will be implemented and the harms that it will cause and what are all the legal ways to oppose it. It’s quite fresh.

But because we have this history of knowing that the Trump administration in the past targeted specifically Muslim countries, and so there was that immediate reaction and appropriate kind of concern about using immigration laws to target people based upon religion or race. Congress responded by introducing the NO BAN Act, and it was reintroduced this year in February, knowing that this would come.

And, again, this is Congress acting in a way to make sure that our immigration laws are used in the way that they should be and enforced in the way that they should be, and that in important matters of national security, that there is a record that informs appropriately any kind of restriction on immigration and travel into the U.S.

And so we again are endorsing the NO BAN Act and calling on people to call on their members of Congress to support this act as a way of standing with others and ensuring that our laws are fair — fair toward people and that we don’t use restrictions on travel in any kind of discriminatory action, any way that harms people, particularly based on race and religion and other categories.

AMANDA: We will put links in our show notes so you can learn about the National Origin-Based Antidiscrimination for Nonimmigrants Act — or the NO BAN Act for short — and find a quick and easy way for you to take action.

 

 

Segment 3: The decision in Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission (starting at 20:09)

AMANDA: So it’s June, Holly. This is the home stretch for this term of the United States Supreme Court, and we’ve already received a couple of decisions in church-state cases — one evenly divided, and the outcome of that case was a rejection of religious charter schools, something that we’ve termed a big win for religious liberty.

We in a moment are going to discuss the latest decision in church-state cases from the Court, in the Catholic Charities-Wisconsin case. We are still waiting on a couple of decisions with implications for religion. One is Mahmoud v. Taylor. We recently reviewed the oral arguments in that case, and that case has to do with opt-outs out of curriculum that a group of parents find are in conflict with their religious beliefs.

Way back in December, we also discussed a case called U.S. v. Skrmetti. That’s a case about medical care for transgender youth, and a decision that could have widespread implications for families and for health care. So we await those decisions, and when we get decisions in those cases, we’ll break them down on the podcast.

We also are getting some orders from the Court, determining which cases they are deciding to take or not take for their upcoming term, and one case that we had been following was a case called Apache Stronghold v. the United States. This has to do with sacred land in the American West, and in an order handed down on May 27, the Court declined to hear that case.

But there was a dissent from denial of certiorari, authored by Justice Gorsuch and joined by Justice Thomas. This was quite a passionate dissent from Justice Gorsuch, in which he really laid out both the religious claims to this land from the tribe that uses this particular land and holds this particular land sacred, explaining, in his words, how he really saw a violation of religious freedom and the First Amendment and the Religious Freedom Restoration Act in particular in this particular decision.

I just wanted to read very briefly from his conclusion, because I think it is so powerful. So Justice Gorsuch writes, “While this Court enjoys the power to choose which cases it will hear, its decision to shuffle this case off our docket without a full airing is a grievous mistake, one with consequences that threaten to reverberate for generations. Just imagine if the government sought to demolish a historic cathedral on so questionable a chain of legal reasoning. I have no doubt that we would find that case worth our time.

“Faced with the government’s plan to destroy an ancient site of tribal worship, we owe the Apaches no less. They may live far from Washington, D.C., and their history and religious practices may be unfamiliar to many, but that should make no difference. ‘Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country’s commitment to religious freedom.'”

And that final quote to end his dissent comes from Masterpiece Cakeshop. I just found that really striking, Holly, that Justice Gorsuch would take up so strongly for the religious freedom rights of this tribe and offer such a passionate dissent.

HOLLY: Yeah. I think many of you would recognize the story here. It is the story of Oak Flat, and BJC has long been an advocate to save Oak Flat. “Save Oak Flat,” in fact, is the name of legislation that deals with this very situation that Justice Gorsuch outlines at the beginning of his dissent from denial. And we’ll link to that in the show notes.

You can get an overview of the situation and understand how Apache Stronghold came to be fighting for this land and other efforts that people have made to protect this very significant, religious, sacred, beautiful land, and the ways that you also might continue to fight for not only Oak Flat but to stand with Indigenous people for religious freedom.

Well, and now we want to talk a little bit about this 9-0 decision. In the religious liberty world, we don’t often see those kinds of decisions, but occasionally we do. And this was not a huge surprise. I was thinking that it was likely the Court might send this one back to Wisconsin to kind of figure out what to do differently.

The case is Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission. And as you mentioned, Amanda, we have discussed this in a prior episode where we listened to oral argument, kind of really focused on what the Court seemed to be concerned with.

In short, at issue is the interpretation and application of a religious exemption in the state of Wisconsin’s unemployment compensation laws. Wisconsin, like many states, has a statutory scheme for providing for unemployment compensation — that is, to help people who lose their job for no reason of their own and are looking for work.

And Wisconsin provides an exemption for churches, and they also have an exemption that we think of being for religiously affiliated organizations, operated primarily for religious purposes. And we talked about this as sort of a technical case, because it involved this language, quote, “operated primarily for religious purposes,” and the decision really is about this interpretation of a very specific provision.

And the unanimous decision of the Court was Wisconsin got it wrong, that Catholic Charities is entitled to the exemption under that language. At least the state cannot deny it for the reasons that they’ve put forth. We say it’s technical because it’s about the meaning of a Section 108.02(15)(h)(2). That’s because that’s how you figure these things out. You have these statutory schemes for taxation and specific words to enact the state’s needs and administer the law. And then the Court can review how it’s applied.

And in this case, the Court found that the way Wisconsin applied this exemption amounted to discrimination between religions along theological lines. Justice Sotomayor explained — actually called it “textbook denominational discrimination.” And that was because part of what the state looked at was whether or not the entity, Catholic Charities, was involved in proselytizing and whether or not they employed people only of one faith and served people of one faith.

And we noted that, Amanda. Remember, as we talked about oral argument, that was something that was really bothersome to members of the Court across the Court.

AMANDA: Yeah. I mean, this principle of denominational neutrality, as Justice Sotomayor writes, is just central to our constitutional scheme and the way that we protect religious freedom. In fact, she said, “Differentiation on theological lines is fundamentally foreign to our constitutional order.”

HOLLY: That’s right. And we could feel that that may be what the Court was going to find, even though it did not at all seem that that was Wisconsin’s intent. Wisconsin wasn’t trying to make those kinds of decisions, liking some religions over the other.

But one of the things I found really exciting about this opinion was how it started with that famous quote, an Establishment Clause quote.

AMANDA: What’s that? What’s that, Holly? This Court actually understands and wants to apply the Establishment Clause. That’s big news.

HOLLY: It was a very exciting part of this decision. Quote: “The clearest command of the Establishment Clause is that the government may not officially prefer one religious denomination over another.” And while I felt pretty confident that that was still the law of the land, it was really good to have a 9-0 decision saying that.

And the case goes on to cite some other Establishment Clause cases, just reminding people that, as harsh as this Court has been on the Establishment Clause — meaning seeing it in a diminished light, kind of shrinking it — it still exists. It still is a fundamental part of the First Amendment.

And, in fact, this case mostly talks about the First Amendment in general, the Establishment Clause and Free Exercise together, which is how a lot of church-state law reads, because these clauses do go together, and they should work together to protect religious freedom for all.

So it’s a positive opinion. We will see what Wisconsin does. Of course, as we noted, Wisconsin has a very important state interest in administering its tax policy and doing so in a fair way that is sustainable and can serve the interests of caring for those who lose their jobs for no fault of their own. But the state will have to do a better job in ensuring that the criteria that they apply is not so easily seen as denominational preference.

AMANDA: Yeah. And I think that’s one thing we can take maybe from this case. Right? You know, you noted, Wisconsin said, Look, this isn’t what we were trying to do. And they were, in fact, arguing to the Court that they should only lose if the Court found, quote, “invidious discrimination,” like that they were trying to discriminate.

And the Court rejected that argument. The Court essentially said, Look, it’s impact, not just intent, that matters in this case. And the impact is that you’re discriminating between religions.

And I think it also shows kind of what can happen when you put religious decision-making or religious judgment in the hands of government bureaucrats. They are not equipped to tell the difference between different religions. And on page 10 of the opinion, Justice Sotomayor distills the argument of the state of Wisconsin into this.

She says, “Put simply, petitioners could qualify for the exemption while providing their current charitable services if they engaged in proselytization or limited their services to fellow Catholics. Petitioners’ Catholic faith, however, bars them from satisfying their criteria.”

It’s like, look, it’s against their religion to proselytize while they’re providing services. It’s against their religion to say, no, we’re only going to serve Catholics in our charitable work. And that kind of nuance, that kind of, you know, specificity is outside the realm of what a government bureaucrat should be deciding between — often outside of their knowledge — and therefore, that’s why we have, in cases like these, saying, We’re not going to discriminate between religions; we’re going to look more generally if they’re providing religious services or if they’re not.

HOLLY: And for us, that is obvious. It’s the clearest command. It’s also kind of the least you can do.

AMANDA: Right.

HOLLY: The arrangement that we have between government and religion in our constitutional order is to protect religion. And while we can accommodate religion and religion does get special treatment under the laws, it should be done for the purposes of religious freedom. And there’s a certain amount that the government just has to stay out of. It has to stay out of religion.

And we argue sometimes that this Court is too lax and too willing to let government be involved in religion, particularly advancing religion and not caring so much that there could be threat to individuals when the government itself looks like it’s taking on the role of religion.

You know, the problem with government getting involved in religion is the first thing it has to do is pick what religion, and so it’s very difficult to protect religious freedom without strong Establishment Clause standards.

AMANDA: So what did you make, Holly — you know, we had this relatively short unanimous decision.

HOLLY: Just 15 pages.

AMANDA: Fifteen pages. That’s pretty quick, because they have to lay out the facts of the case, too. We had an even longer concurrence from Justice Thomas that he wrote for himself. No one else joined his concurrence. It is 16 pages. And it seems to be kind of how he would come to the decision under a totally distinct doctrine, something called the church autonomy doctrine.

You know, I don’t know exactly what to make of this –obviously just one vote for using this doctrine to determine this case. And so, do you have any thoughts on kind of what implication this has or why he might have authored this separate concurrence?

HOLLY: I think we’ll be looking at it very closely, and other scholars and litigators will be examining it more closely, because even though it’s just one vote, it reflects that there is a great deal of discussion about that idea of church autonomy, especially as a legal doctrine.

It’s often referred to as an abstention doctrine, that the Court has to stay out of matters that have to do with ecclesiastical matters — things that are so churchy, so churchy, it’s clear the Court has no jurisdiction being involved in them.

And we think about that in cases like the ministerial exception cases, these cases where the Court stays out for First Amendment reasons and really, you know, lets the church entities, the religious entities, kind of figure things out for themselves, because it’s clear the courts don’t have competency.

But the extent of whether or not this doctrine applies in a lot of different situations, as Justice Thomas notes, these ideas come out of very old case law, in sort of the beginning of our — really the beginning of our constitutional era, not even development of First Amendment law. These are longstanding ideas, but the extent of the doctrine, how it applies, particularly where religious entities now may be receiving government funding, is something of great concern and debate.

So I think this was Justice Thomas going ahead and putting his licks in there, saying, here’s how he sees it, to see if he can influence the law for later cases.

AMANDA: Yeah. And then Justice Jackson wrote a separate concurrence of ten pages, in which she really took on a different issue, and that was interpretation of a federal statute on which the Wisconsin statute was, you know, similar.

This came, I think, directly out of maybe some the questioning at oral argument. She seemed to be concerned about an argument that the United States government was making about some of the language of that federal unemployment statute, and she wanted to make her view known. Again — she’s writing only for herself, but she talked particularly about how that federal statute turns on, in her words, quote, “what an entity does, not how or why it does it.”

HOLLY: That’s right. And we remember at the oral argument, that was a big part of what the Court was trying to get to. It seems way too broad to defer totally to the recipient of the benefit, of the exemption, in order to define it. You know, you can’t just say — you know, someone can just say, I’m motivated by this, and therefore get the exemption. There needs to be more to it than that.

And I think that’s why Justice Jackson wrote that concurrence, to be clear that there is another way of looking at the activity. And I think that’s to urge the Court below to go back and find that in a way that doesn’t distinguish based on denomination.

So we have just a few more weeks for the Court to wrap up its business this term. I know there are some other significant cases, not only the Mahmoud case that we mentioned, Amanda, that we’re waiting to see, but, of course, the big case about nationwide injunctions, about birthright citizenship. That’s still pending.

And, of course, as we noted, the Court’s in this time of taking on cases for the next term. So we’ll be watching, and we’ll be back to discuss these decisions as they are determined and submitted.

And that brings us to the close of this episode of Respecting Religion. Thanks for joining us. For more information on what we discussed, visit our website at RespectingReligion.org for show notes and a transcript of the program.

AMANDA: Respecting Religion is produced and edited by Cherilyn Guy. Learn more about our work at BJC defending faith freedom for all by visiting our website at BJConline.org.

HOLLY: We’d love to hear from you. You can send both of us an email by writing to [email protected].

AMANDA: We’re also on social media @BJContheHill, and you can follow me on X, Bluesky, and Threads @AmandaTylerBJC.

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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 next time for a new conversation Respecting Religion.