Topics of Discussion:
Thomas: Hello and welcome to Opening Arguments, this is episode 348. I’m Thomas and you know what? I know what day it is now!
Thomas: I finally figured it out, I had to regroup. How’s it going, Andrew?
Andrew: It’s going fantastic, Thomas, how are you?
Thomas: Ah, back on a regular schedule. I’m so excited.
Andrew: Oh yeah!
Thomas: I’m also excited to have Alison Gill, Vice President of Legal and Policy over at American Atheists coming on today, she’s going to discuss the State of the States Report that they have put out all about religious freedom and religious freedom laws, which is to say oftentimes those are kind of named misleadingly.
Thomas: It’s a report about the state of separation of church and state in the United States and the State level, it’s very interesting stuff, we’re gonna find out which States score well, [Laughing] which States don’t score well, things we can do, ways that our rights are being either protected or infringed upon. Lots of good, useful information to start trying to make a difference and to continue trying to make a difference in this regard. So what do you say, should we get on over to our interview with Alison Gill?
Andrew: Yeah, I’m excited about it.
Thomas: Let’s do it!
Interview with Alison Gill
Thomas: And here we are, joined by Alison Gill of American Atheists, Alison how’s it going?
Alison: Going great, thank you for inviting me.
Thomas: Oh thanks so much for comin’ on, I’m excited to hear what I’m hoping will be some good news? But you never know? [Laughs]
Thomas: Could also – I’m sure there’ll be good and bad.
Alison: Yeah, that’s right, that’s how I would characterize it. Good and bad.
Andrew: Well yeah, let’s start from that. American Atheists has just released their State of the Secular States Report and you were kind enough to give us an advance copy. Just a ton of really fascinating, scary, terrifying, optimistic, a huge grab bag of legal issues, so A, thank you so much and B, let’s delve into it!
Alison: Wonderful! Well I’m really excited to be launching this State of the Secular States for 2019, this is the second iteration of the report. We released the first inaugural version for 2018, at the end of 2018 and so this year we’re updating it to include a lot more information. We’re also having it characterize the States, break them into categories so you can easily see which States have a greater or lesser amount of religious equality, and we did some really great things I’m proud of, we added Puerto Rico, for example.
Thomas: Well that means it’s gonna be a State then! Awesome, yes!
Alison: [Laughs] Well, you want D.C. in there too. So States and State-adjacent.
Andrew: Wait, D.C. Statehood as well? This is great!
Thomas: Yeah, that works.
Andrew: That’s four more good votes in the Senate!
Alison: Exactly, yeah.
Andrew: So where is the topline on the State of the Secular States?
Alison: Sure. Well the report is an analysis of State laws and policies that affect the separation of religion and government and religious equality for everybody. So it looks at about 40 different measures of religious equality in every State, everything from constitutional protections to religious exemptions to the tax laws to are there protections in place against religious based harm? Things like conversion therapy, it’s just a whole bunch of different types of laws and policies that affect issues concerning religious equality.
Andrew: So let’s drill down on that a little bit. You are Vice President with American Atheists, Thomas and I are atheists-
Thomas: And Americans!
Andrew: [Laughing] Yeah, and Americans!
Andrew: But lots of people listen to the show who are religious to various degrees. If I’m a left of center moderate believer how am I gonna approach your definition of religious equality? Talk to me about how that interplay is if I’m just kinda your run of the mill, I’m generally on board with – I’m certainly opposed to gay conversion therapy, but how do you define religious equality?
Alison: Sure. Religious equality means that the government does not take positions that basically put one religion or set of religious beliefs, or non beliefs, over another. We keep hearing, mostly from the right, about religious freedom, their version of religious freedom, which is not really the historical version of religious freedom, it’s more about Christian privilege and encoding their own beliefs into the law. So when I say religious freedom, religious equality, we’re talking about our historical understanding of what that means; the founder’s understanding where your religious beliefs do not impact how the law affects you. Everyone has the same rights regardless of what they believe or don’t believe. So that’s what we’re trying to measure in this report.
You are right, it’s a bit nebulous what religious freedom means, so when we say separation of church and State or religious freedom, people have different ideas what that means. But we’re trying to get across through this report what our idea about what that means, especially at the State level. What laws and policies effect or reflect how religious equality is perceived in the States?
There’s nothing in this that is specifically, I would say, atheistic. I think anyone that has a fair-minded view of religious freedom and religious equality would be able to see and understand this and understand why it’s important that the laws and policies in this guide are either in place or not in place as the case may be. We look at both positive and negative measures.
Andrew: Well why don’t we dig into several of those measures?
Alison: Yes, absolutely. So I break them out into four main categories; there’s State constitutional protections; then we break them out into education and youth; healthcare and wellness; and special privileges for religion. Each category has both positive and negative measures. Where would you like me to get started?
Andrew: Let’s start with something positive!
Andrew: [Laughing] We don’t get enough of that on this show, so…
Alison: I think that’s great. Over the last year we’ve actually seen some positive movement in several of these areas as well, especially in areas about preventing religion-based harm. Now, people might understand these things in different ways, I guess I’m framing them in our perspective. Things like preventing conversion therapy, protecting young people from child marriage, ending female genital mutilation. We believe, to at least some extent, these things are the result of religion in our society. Other people might have different beliefs about that, but that’s ours, so therefore we oppose these items and try to have laws in place to protect young people from these sorts of devastating behaviors and outcomes.
In that area we’ve actually made a lot of success over the past year, seeing, for example, I think there’s now 35 States that protect young women from female genital mutilation, which has come a long way in just the last several years. It’s just one example. The same is true with conversion therapy, there’s been numerous States every year passing laws to protect young people from conversion therapy because I think society is more and more recognizing that this sort of abuse in the name of religion is a terrible thing.
Thomas: Yeah, that sounds like a platform that I would hope everybody listening to this show could get behind. Banning conversion therapy, banning FGM, and a couple of the other harmful things you’re talking about, seems like you don’t necessarily have to be an atheist to see the harms that those things are causing.
Alison: I definitely agree, yeah. These are not specifically atheist issues, they’re issues about equality for everyone. I’d say the same is true about some of the other categories which are really about the separation of religion and government and not necessarily atheist-activism.
Andrew: Yeah, one of the things I see that’s listed in the report is Michigan is highlighted as a State with a law prohibiting FGM. We talked about that really unusual case I think a year, year-and-a-half ago. The federal decision that really rested on a lot of abstruse legal doctrines. Can you kinda tell us what happened in Michigan?
Alison: Sure. So there was a federal-level law that prohibited female genital mutilation across the country and there are also of course a number of State level laws in place, including in Michigan. Well the federal level law was struck down in that case under sort of a dormant commerce clause theory. You know [Sighs] I think we’re gonna start seeing more and more of that as the right wing gains ascendency in the courts, but it’s an area where trying to limit the reach of the commerce clause, it was heavily criticized. But regardless, the States did react to this decision and really picked up the mantle of this issue and protecting young women from getting genital mutilation. Just over the past year we saw seven States move forward with these protections.
I’ll also say this is an issue which is very, very bipartisan [Laughing] which you don’t often see these days, I often introduce them led by Republicans. So, you know, of course it’s not good to see a federal protection struck down but at the same time it is good to see the States actually pick up the mantle and actually do something to protect people.
Andrew: Yeah. Just piggybacking on what you said, one of the things that we talk about on the show a lot is it is very easy to feel a sense of despair about the current status of the political system and we get that, but one of the things that I think you highlight in this report that was emphasized in what you just said is that grassroots activism, working at the State level, is even more critical now than before. If you know you can’t count on being able to get a law, even laws on these areas that would seem beyond controversy, you would think you would have 70 to 80% agreement that you shouldn’t have forced gay conversion therapy. If we’re losing out on that at the federal level it sort of gives an opportunity for activism at the State level.
What sort of strategies do you think people should pursue going forward in terms of being informed and then getting active?
Alison: Absolutely. I think what you just laid out is the entire point of the report. It’s our effort to provide resources and really empower State and local activists to take the reins and either oppose negative legislation in States or work to advance positive legislation in States. It’s really a critical moment for it. I mean, it’s hard to advance our issues in other ways at the moment. The federal level is very challenging in Congress, of course things are going pretty badly in the administrative state, and the courts are looking worse and worse. But the States, the States are a place we can make real changes and affect people’s everyday lives in a positive way.
So there’s a few different ways to get involved. The best way is probably to join groups!
Alison: American Atheists has affiliates in the vast majority of States that work on advocacy, but there are lots of other groups and partners that we work with. The best way to do State advocacy is in coalition. We work with, for example, the ACLU in different States, we work with LGBT groups, other civil rights groups, even some religious groups. There’s all sorts of interests that people might have, but finding a local group that matches where you align yourself in getting engaged in State policy is a great way to move forward.
We’re hopeful that this resource will provide a benchmark so that advocates at the State level can understand what laws we have in the State already on the books, what don’t we have, how to move forward from that place. What should we be working towards or working to repeal?
Thomas: Alright well we’ve got a State scorecard here so I want to name and shame! Which States are good, which States are bad? Oh no, I’m in California. I’m feeling pretty good but who knows? Maybe it’ll be a surprise upset, maybe we aren’t doing so great.
Alison: No, spoiler! You’re doing great. [Laughs]
Alison: So basically we sorted the States into three different categories. We’re calling them the strong protection for religious equality, basic separation of religion and government, and religious exemptions that undermine equality. There are ten States that fall into the highest category, 21 States and territories in the middle, and then 21-
Thomas: Last category, which is Gilead, by the way!
Alison: [Laughs] Yes! In short, that’s what we’re calling it. Those are the usual suspects I would say, although there are a few surprises in that latter category, and some States you might think would be awesome are also not doing so great, honestly.
Alison: Like Maryland, for example. Pretty blue State, actually falls in the middle.
Andrew: Yeah, thanks.
Thomas: Andrew? Get your ass together over there!
Andrew: [Laughs] Well, no, so that’s right. I went to the scorecard and Maryland is in that middle category with Virginia and Alaska.
Thomas: Alaska? Hooo! Yikes.
Andrew: Not exactly other – Utah, right! Maryland and Utah are the same according to this report, so what did we get wrong? What do I need to get working on in my State here?
Alison: First I wanna say, just in defense of Utah, there are a lot of misconceptions about the State. Now because there’s so many people of a particular religion in the State people think it’s very religious but actually that religious group has been one, historically, that has been somewhat persecuted.
Alison: So they’re a little bit more self-aware about the separation of religion and government than might be expected. You know [Laughs] I’ll just say-
Andrew: No, A, I’m always glad when we’re picking on States to rise to the defense of Utah, but seriously it’s a really, really good point on two levels. Number one, you can build coalitions and find common ground with members of religious groups, with people with whom you disagree because everybody benefits when we have a secular society, this shouldn’t be an argument in 2020 but apparently it is.
Number two – I was gonna tee this up as a question, but I do hear from folks who listen to the show and say hey, we love the show, but I live in Dallas, Texas, I live in Utah, I live in a deep red area and it feels kind of hopeless to get involved in these issues. Let’s unwrap that thread a little bit. If you are an atheist living in a deep red area, what kind of strategies would you suggest in terms of being able to make a difference?
Alison: Sure, sure. I’ll address that, but I’d like to go back to Maryland after if that’s alright with you!
Andrew: No, yeah, I was- [Laughs] That too!
Alison: So I would say there’s a few different things you can do. I think one, we have to change the narrative around religious freedom. Right now it’s being run by the Christian extremists, unfortunately, that religious freedom means one particular thing, that it means their rights are ascendant over everybody else’s. And I think that there’s a long American tradition of religious freedom, religious equality, that we’re leaving behind but that still appeals to many people, that concept. The separation of religion and government is something that people understand and, for the most part, outside extremely small minorities, support.
So using those concepts and basically advocating on that front can bring over people that you might think may not be supportive otherwise if you’re talking about, for example, LGBT issues or whatever it might be, that’s the progressive issue you’re talking about. I feel like there’s work that can be done using the language in context of religious liberty that people might be more receptive to even if they are more conservative and I think Utah’s a really good example of that because it is a conservative State but at the same time people understand and respect the separation of religion and government.
I’m happy to go into that further, but I did wanna touch on Maryland.
Andrew: I was trying to distract you from what’s wrong with my State, but no, no! Please, please do go on.
Alison: Sure! So Maryland is an odd example of a State that does not have a lot of negative things I would say, there are not a lot of exemptions, there’s just not a lot of positive things there. There’s very, very few State constitutional protections for the separation of religion and government. There is a free exercise clause but that’s about it in the constitution, and so there’s just not much else that’s positive. It sort of relies on the federal constitution to provide that separation.
On the negative side there are a few bad things. For example there’s denial of care laws, laws that allow doctors to refuse to provide abortions or other medical services based on their religious beliefs rather than the best interest of the patient.
Alison: Vaccination requirements, religious exemptions to vaccination requirements. Things like broad tax exemptions for places of worship, that sort of thing.
Thomas: Can I ask a question about vaccinations? That’s something I care a lot about. In California I know I’m here on the list of champion States, I got the top ten I guess, but also I do feel like anecdotally there are a lot of anti-vax people here – and maybe not even anecdotally, like there just are! I wonder, they also don’t necessarily strike me as particularly religious. Apologies if this is beyond the scope of the report but are there other non-religious ways that people are fighting vaccination requirements or is it pretty much limited to oh, we’ll get a religious exemption in there and then most anti-vaxxers are gonna fall under that? What do you think about that?
Alison: Yeah, that’s a great question. There’s a lot of discussion around vaccination and exemptions these days, it’s been a really increasingly important issue and actually on the positive side, since we like talking about the positive things, there were several States that withdrew or repealed their religious exemptions to vaccination last year including New York and Maine, which is fantastic.
But, yes, to answer your question there are really two types of nonmedical vaccination exemptions. One is religious exemptions based on a person’s religious beliefs or their parents religious beliefs. The other is personal exemptions which are ill-defined but basically mean “I don’t feel like it.” So there are still 15 States that allow personal exemptions. Now California does not have either.
Thomas: Oh, good!
Alison: They repealed their religious exemption several years ago, so they do require, only for medical reasons are you allowed to opt out of vaccination requirements in California. We think that’s the best way to go, it should be based on medical necessity and that way we protect everyone and don’t leave anyone behind. But there are, like I said, 15 States that still allow personal exemptions and in many places these exemptions are broad enough to really cause a lot of problems and to drop the level of immunity below the herd immunity threshold. That’s when we see epidemics, unfortunately, and there’s been a number of epidemics this past year including flu epidemics and whooping cough in some States.
Thomas: So California, we’ve covered, is a great State, awesome. I was gonna say everybody should move here but don’t, actually.
Thomas: Can you go – can everybody move to the electoral college States that we’re struggling in? All we’re gonna do is exacerbate that problem if you all move here.
Thomas: But anyway, can we talk about some of the bad States? Some of the Gilead States? What are the biggest threats, what are the biggest harms that you’re seeing in these States that are labeled “Religious Exemptions that Undermine Equality?”
Alison: Sure. I would say that Mississippi is one of the worst States. Not only do they have the religious freedom restoration acts that we see on a lot of other States, but they also have a lot of particular religious exemptions that are very dangerous, and let me just give you a couple.
Professional licensure is one. So a lot of States have Statewide licensing boards or organizations you have to become a member of, like the State Nursing Organization in order to become licensed to practice, right? Well there’s been a few cases where those organizations have codes of conduct which say well you have to serve everybody you can’t discriminate against people if you’re gonna get a license and therefore you have to be able to sign this code of conduct or whatever. Or our program at this school, this public school, requires that you have a code of conduct to serve everybody so you can’t discriminate.
Well, the right often wants people to be allowed to discriminate, so they are pushing forward in a few States, like Mississippi, laws that say basically if a person would’ve gotten a license except for the fact that they are being required to not discriminate and it’s against their religion, then they have to be considered to have a license anyway. They’re trying to work around the safety and license requirements based on religion.
That’s one example, but this bill is so [Laughing] broad there’s really no way that can sort of characterize it. It’s every possible religious exemption we could think of, effecting not only health and wellness but also education and youth, foster care and adoption, marriage related services, State officials. For example you can opt out of providing wedding-related services, that sort of thing.
Andrew: You could opt out of providing wedding-related services for any religious objection?
Alison: Exactly, yeah. Yeah.
Andrew: So in practical terms-
Alison: It’s amazing, too-
Andrew: Yeah, go ahead.
Alison: There’s no [Laughing] nondiscrimination law in the State!
Alison: So it’s utterly useless.
Thomas: So not only is there no nondiscrimination law, you also have a right to opt out of the nonexistent nondiscrimination law? Is that what you’re saying?
Alison: Based on your religion, exactly. This was challenged in Court but they immediately ran into a standing issue because how do you-
Thomas: Yeah! [Laughs]
Alison: [Laughs] How do you have standing challenges if there’s no nondiscrimination law in the first place?
Alison: But that ignores the larger issue here, I think, that it has a negative effect on people if you’re given special permission by the State to discriminate against them even if there is a nondiscrimination law. It’s somehow worse, I think.
Thomas: I know we’ve talked about vaccination, but the vaccination issue aside is this largely, all this stuff is pretty much about discriminating against LGBTQ people? Is that pretty much the broader theme of a lot of this, particularly the bad States?
Alison: You know I think that has some to do – I mean a lot to do with it, but I think there’s other angles that that misses.
Thomas: Okay, feel free to go into those!
Alison: Sure. Well the other big issue is abortion.
Thomas: Oh, sure. Yeah! [Laughs]
Alison: Reproductive health, which is really about control of women’s sexuality. That’s a major part of it, I think, is abortion. That has to do with denial of care laws and other types of religious refusals and healthcare issues that are happening.
I think another big part of this that we don’t often talk about that we’re seeing more so with Project Blitz is Christian nationalism. That is the idea that we’re seeing several religious groups trying to get into the schools as early as possible to influence young people and perpetuate the idea that America was founded as a Christian nation. We’re seeing a lot of bills reflect that ideology, especially involving education and youth. That’s not really about LGBT, it’s not about abortion, it’s sort of a third category, I would say.
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Andrew: Let’s cut in. We’ve referenced this on the show before, but you wanna give a definition of Project Blitz and what we know about it and what we can do about it?
Alison: Absolutely. Project Blitz is sort of a secretive campaign by the Christian nationalist right to insert as many bills in State legislatures as possible to undermine LGBT equality, attack access to reproductive services, and undermine the separation of religion and government. It uses the idea, their version of religious freedom, to push forward these bills and ultimately it works to perpetuate the idea of Christian nationalism as I was talking about before. To use symbols and language about history and other information to introduce to young people at an early age that America was founded as a Christian nation, that’s its purpose and it remains a Christian nation today.
There’s research showing that when people believe that they’re much more likely to support politicians in the vein of Trump, they’re more likely to support policy goals which we might be opposed to that are maybe more about equality or more about religious tolerance.
Andrew: I wanna go into the specifics of some of those proposed component bills. My understanding is that part of how this Project Blitz is being carried out is by having coordinated national efforts to introduce the same kind of language for the same kind of bill in multiple States. On example that I’m familiar with is the bill requiring all public schools to display the National Motto. That’s how it’s written, and of course our National Motto, for historical reasons, is “In God We Trust,” so that now leaves up to each individual school whether they’re gonna display that on a dusty plaque in the conference room or in 12-foot high letters backlit with neon in the front of the school.
Alison: Or in every classroom. A lot of the bills require every classroom.
Andrew: [Sighing] Oh my – Does it? [Laughs] See I love how it’s always worse than I could even imagine? That’s an ongoing theme of the show! But talk about, if I’m gonna steel man the other side I would say okay, look, whatever, it puts a little plaque in every classroom. I get you don’t believe in god but why are you so sensitive about that, what’s the big deal?
Alison: Sure. If we’re gonna steel man the other side we should talk about how it’s so hypocritical for them, as well.
Alison: The other side pretends to be about State’s rights, local government, you know, non-governmental interference and they’re mandating that every classroom in the State has to have a poster that says “In God We Trust,” that’s sort of the opposite of that philosophy! [Laughs]
Andrew: Well, yeah…
Alison: But, you were mentioning Project Blitz and it really has two components in the States, two main components for the campaign. The first is they establish prayer caucuses in as many States as possible, currently they’re at 42 States with prayer caucuses, which are sort of like loose affiliations of lawmakers in the State legislature that’s meant to advance Project Blitz’s aims. Prayer caucuses sound fairly innocuous? There’s no indication that they’re aligned with Project Blitz offhand, there’s no handbook they give out, so I think this is used sometimes to draw in a lot of lawmakers who might be religious or might support prayer or who might be, for example, Democrats and not know what Project Blitz is or what it’s about. So there’s that component, and then there is the-
Andrew: Well let’s – I wanna drill down on that a little bit.
Alison: Oh, yes.
Andrew: Is there an educational aspect of, you’ve got this innocuous-sounding group that is talking to legislators. Is there a degree to which we can get involved even in blue States? I mean, you said 42 States have these prayer caucuses, and just kind of let our elected officials know, hey look this group is not aligned with your interests?
Alison: Absolutely! That’s what we’ve been actively engaged in, it’s how we’re pushing back against Project Blitz is exactly that, to raise awareness about it. But even then, most lawmakers have never heard of it, but we’ve been really trying to raise awareness with our partners. We’ve created a campaign to oppose Project Blitz, you can find it online, it’s www.blitzwatch.org. It’s supported by many national organizations, and the goal is to raise awareness among lawmakers and advocates so people can see what Project Blitz is doing and to push back against it because otherwise these things just sneak under the radar, we see bills being introduced in 15 States without any sort of indication where they’re coming from. But by exposing it we can drag it into the light and help defeat these plans.
Andrew: Yeah. I just wanna emphasize, particularly in the State legislature, a number of these positions are part time, so the Trojan Horse aspect is it feels like a benefit. You have this aligned group and they say oh, we have this innocuous sounding piece of language, public schools display the national motto, and you don’t think about it being a Trojan Horse. I really like that level of activism, just informational activism. But I interrupted you so I’ll let you go back and talk about the other component. So one component are these prayer caucuses, what else are we looking at?
Alison: Well the other major component, you sort of touched upon it, are these model bills. So they have a policy guide that they update every year. This last policy guide for 2018-2019 had about 21 model bills. It’s not just the bills themselves, it’s also talking points, places where the bill has been passed previously, just a lot of material about, not only do they anticipate our opposition, our arguments, talk about how to defeat those arguments, they talk about the level of opposition they’re going to be seeing when these bills move forward so that – the goal is very clear to start with low-hanging fruit, easy bills to pass, like “In God We Trust” in schools, and to progress from there into more difficult, more challenging bills. For example, religious exemptions of discrimination or like in foster care or schools. That sort of thing.
It’s meant to very much progress and provides the context for how to do that effectively. You can see how they work together. The State caucuses generally have a facilitator or coordinator role associated with Project Blitz that’s able to send the model policy guide out to lawmakers who might be more sympathetic within the caucus, and then they can basically make process on the low-hanging fruit bills, build momentum, work together. They might not even understand that they’re working ultimately against LGBT equality, against reproductive access, that sort of thing.
It’s very insidious, the entire campaign.
Andrew: I guess we’ve done some positive, some good news, some activism. What should we be most afraid of in terms of, that is trying to bubble up to the surface as part of Project Blitz?
Alison: Sure. Well last year we saw a few different areas where they were making the most progress. One, which we’ve seen over the last couple years was “In God We Trust” in schools bills. In 2018 we saw about 26 of those introduced in about 26 States around the country, last year it was a slight drop to about 20 of them but that’s also because many of them passed [Laughs] in 2018 unfortunately.
Alison: A lot of these bills are passing without any real significant opposition which is why we started the Blitz Watch campaign. They were just passing through, often with unanimous support from the legislature, they were not seen as the harmful bills that they are, they were getting full Democrat support in a lot of places. So that’s one way that we’re opposing it is to raise awareness. So those bills, we’re definitely going to see more of those again in 2020.
Also last year, at the beginning of the year President Trump came out in favor of, I guess, bible class bills? This was an issue he spoke about in support of bible class bills. These are bills that require that school districts offer an elective bible class that students can take. It’s not mandatory for the students, it’s mandatory for the school, so the school would have to offer it regardless of if they have resources to do it, regardless if they have teachers that are capable of teaching it, or if they have space for it or textbooks or money. [Laughs] Any of those considerations are thrown out the window and they’re required to offer these classes. Those saw significant progress last year, I think they passed in two or three States and we’re likely to see those again this year.
Andrew: I imagine – well, let me not frame it as a leading question. What’s the status of the constitutionality of [Laughs] that bill?
Alison: Yeah, that’s a great question. There’s been a lot of research about those bills and how they’re being executed. I think the leader of that research is Dr. Mark Chancey from Texas and the Texas Freedom Network has done a lot of great work on this, looking at how school districts are implementing these bills and are they following the constitution? The answer, as you can generally guess, would be no. [Laughs] They’re not doing a very good job! They don’t have the resources or understanding to – you know, it’s possible in a school to teach about the bible in a way that does not violate the constitution.
Alison: The Supreme Court has said that and it’s probably true, especially if you’re teaching in a comparative religion sort of context and it’s more like an academic study or an educational context about the bible or about religion, but more often than not these classes become mini Sunday Schools, or they’re used to proselytize or promote particular religious beliefs and that’s not acceptable under the constitution. That’s more often what we see.
You know, there have been challenges but it’s a difficult thing, especially when they’re elective, to find students that are willing to speak up against them and to really challenge these bills in court. We’re always looking for people to do that, so… let us know! [Laughs]
Thomas: So I know this is a report about the States, it’s the State of the States, but are there – you mentioned, for example, States having RFRA laws, doesn’t the country – federally isn’t there a RFRA law? How much of this is redundant and/or are there things you’re keeping an eye on federally that will moot some of these things or make ‘em worse? Could you talk about that?
Alison: Sure. First of all, when it comes to RFRA, the federal RFRA law does not apply to State laws. It does not provide exemptions-
Alison: -to State laws, it only applies to federal law. There was actually a Supreme Court case around this, so it’s very clear. There are about 20 States with State RFRAs, and just because they have the same name doesn’t mean that they are the same.
Alison: Some States have RFRAs that are basically equivalent to the federal one. Other States have RFRAs that leave out certain words or that are applied much more broadly, or that the courts have considered to be more broadly. For example they might leave out the term “substantially” when you talk about how religion has to substantially burden – I’m sorry – the government has to substantially burden a person’s exercise of religion. Well if there’s no “substantially” there does it have a different meaning? That’s a good question, right? It can be applied differently in the States.
At the same time, the opposition has really been pushing for years to get interpretations of the law in court where basically RFRA is applied much more broadly and basically undermines nondiscrimination laws. That can happen easier at the State level than at the federal level sometimes, so therefore those sorts of laws might happen in States. These laws are being pushed forward with that specific goal in mind, so the legislative history might be very different and written in a way that that’s what the lawmakers intended, or the State courts might have been pushing forward to allow that to happen in a different context, so you can’t just generalize from the federal RFRA and say it’s okay that States have it because there’s entirely different context there and a different set of goals from the opposition.
Thomas: Yeah, I guess the second part is things you’re keeping an eye on federally that could moot or change some of these State concerns? Is there anything?
Also, tied in with that, on this show we’ve talked a lot about how Trump – and mainly McConnell, I guess – is fundamentally altering the judiciary and how that’s going to affect things going forward, but I wonder, when we’re talking about State laws that seems separate from that. How do you feel about the trajectory going on here? Do you feel good about it?
Maybe as a way to draw this to a close you could talk about how hopeful you are and also if my premise is right about the judiciary being fundamentally changed is that going to change your outlook? Or is it the case that because we’re talking about State laws, fortunately the federal judiciary isn’t going to affect those?
Alison: That’s a great question. I am worried about how the federal judiciary is going to affect State laws, I think a really great example of that is the Espinoza case. I think definitely that the federal courts can affect what’s happening in the States and I think that’s an important issue to consider. The Espinoza case is a really good example of that where in Montana the State Supreme Court struck down a bill that would’ve created a voucher program to allow money to go to private schools in violation of the State no-aid clause, so the State clause that prevents indirect or direct funding of sectarian education. That is now being considered by the Supreme Court and if it goes badly there’s many, many States that have no-aid clauses, so that’s an issue which will vastly affect State constitutional law.
I believe there are 37 States that have no-aid clauses that affect educational organizations, and these were passed with the intent to maintain the separation of religion and government. If they are eliminated we’ll see across the country just this wave of advocates pushing for voucher laws, which will significantly undermine public education in many, many States throughout the country, unfortunately. I think that’s a really good example of how the federal courts can affect what’s happening in the States.
At the same time, there is a bit of insulation. State courts have their own constitution to follow and their own history and jurisprudence and therefore we can do things in the State which may be very challenging to move forward with at the federal level. We can also interpret things in State constitutions and in State law differently than they’ve been interpreted at the federal level. Standing is a good example of that. At the federal level standing has been so greatly narrowed over the years – thanks Scalia! So greatly narrowed, however that really does limit our ability to protect the separation of religion and government because it makes it more challenging to basically challenge establishment clause violations.
However, at the State level they don’t have to follow Article 3 of the federal constitution, they have their own State constitution so they can leave their courts more open to those sorts of challenges. That’s just one example. I think there’s still hope at the State level, I think we can pass laws more easily there, we can repeal negative things more easily, and there’s still enough flexibility for us to have some insulation from the federal level.
Thomas: Okay, well we’re about at time but Alison, thank you so much for coming on. I think going out maybe we should see where we can point people? If they wanna help, if they wanna donate, if they wanna do what they can to help this effort to stop [Laughs] Christian nationalism, essentially, from ruining our country. Where should people go, where do you want to point people to?
Alison: Sure, well I have two sites. The first I mentioned previously is blitzwatch.org, that talks about our efforts to oppose Project Blitz and Christian nationalism, blitzwatch.org. The other is the State of the Secular States report is available at atheists.org/states. There’s a scorecard for every State, it’s all very accessible there.
Thomas: Alright well thank you so much and keep up the great work!
Alison: Thank you!
Thomas: Okay, now it’s time to thank our top patrons, our hall of famers, our all time greats over at patreon.com/law. That’s how I know what day it is, because it’s Top Patron Tuesday! All the holiday cheer, we’re all done with that, we’re on a regular schedule. Here we go, I will start us out with our top patrons over at patreon.com/law.
[Patron Shout Outs]
Andrew: Thank you all so much!
Thomas: [Laughs] That was awesome! [Sighs] Good stuff!
Andrew: You know, you wanna be a part of these shenanigans, head on over to patreon.com/law, sign up for 5 bucks an episode, I promise everybody on this list will tell you that it’s worth it and you can get in on all the fun, all the goodies, all the everything. We hope to see you!
Thomas: Change your name every week, get a different shout out, I love it! So much fun. Alright, it’s time for T3BE!
T3BE – Answer
Thomas: Answer time! How did I do?
Andrew: So this was a wholesaler agreed in a signed writing to sell the bakery 10,000 lbs of flour each week for 10 weeks. Week one comes by and they deliver 8,000 – and they’re gonna deliver it on Monday. Baker bakes their bread on Tuesdays and pays on Wednesday. As you point out that means don’t buy bread from the bakery on Thursday but, you know, whatever.
Thomas: [Laughs] Or Monday, by the way!
Andrew: [Laughs] Right.
Thomas: Maybe they’re closed.
Andrew: Yeah. Maybe if we have some bakers in the audience they can tell us.
Thomas: Yeah, let me know how often, ‘cuz there’s the day-olds usually, but week-olds? I dunno.
Andrew: Yeah, I would think your bakery is gonna be baking more often than that but who knows?
Andrew: Maybe this is a “don’t order the fish on Monday.”
Thomas: Plus you need that smell too, you need that smell wafting into the neighborhood.
Andrew: So good.
Thomas: Anyway, I wanna go eat some bread, hurry up! [Laughs]
Andrew: Be right back! Gotta get some bread.
Andrew: So week one they deliver only 8,000 lbs on the Monday but they deliver the extra 2,000 lbs Monday night, then the buyer accepts that, pays for it on Wednesday. On Monday the second week, the wholesaler only delivers 5,000 lbs, then says oh yeah I’ll get the other 5,000 to you by Wednesday and the bakery rejected the tender. Were they legally justified in doing so?
I am gonna cut to the chase, you said B) Yes, because the tender was a substantial impairment of that installment and could not be cured. That is a correct statement of the law!
Andrew: It is the Uniform Commercial Code § 2-612(2), which I’m sure you remember from law school.
Thomas: Of course!
Andrew: Which provides that a buyer may reject any installment that is nonconforming if the nonconformity substantially impairs the value of that installment and it cannot be cured. That’s just a fancy way of saying what you worked through, which is okay, the first thing with the 8,000? You got all the flour in time to do your baking so I don’t even know that it was a big deal.
Andrew: That’s what it means by the nonconformity – it didn’t conform to the contract, right, because they didn’t send 10,000 at once, but that nonconformity did not substantially impair the value of the installment because they had all the flour by the time they were going to do the bread.
Your second chance answer D says, I’m gonna just read from the question text here: “UCC Article 2 adopts the perfect tender rule, but the perfect tender standard is inapplicable to determine whether a seller’s performance conforms to an installment contract. Given that this is an installment contract, the substantial impairment standard governs the buyer’s right to reject, and in this case the bakery did have the right to reject the second installment. In addition, a buyer’s previous acceptance of a nonconforming tender does not constitute a waiver of its right to reject a later nonconforming tender if the other grounds for rejection are satisfied.”
That’s a longwinded way of saying that that was-
Thomas: That I nailed it!
Andrew: -a total, unattractive distractor and you completely nailed it. Good job, Thomas!
Thomas: Thank you, thank you so much! I mean, my New Years Resolution was to get every single bar question right and so far!
Thomas: So far so good! [Laughs]
Andrew: Alright well that’s it, let’s pack it in.
Thomas: So let’s cancel the year, let’s go on to 2021 so I can be right. No, alright-
Andrew: Well if you only write 20 on the end of your check you could make it 2021.
Thomas: [Laughs] Yeah! Okay, well let’s hop in our time machine and find out who this week’s big winner is, I mean it’s definitely me, but in addition to me, who else is this week’s big winner?
Andrew: Well nobody could be as big a winner as you, Thomas!
Andrew: Well Thomas, this week’s winner is the Books that Burn podcast! That is @booksthatburn on Twitter who write, “My answer is B because receiving ½ the required shipment 1 to 2 days after it is required (both by the contract, and for the bakery to do their baking on time) is a substantial impairment in a way that receiving the shipment in 2 parts on the day specified is not.” Well they are exactly correct and congratulations on being this week’s winner! Everyone give ‘em a follow, that is @booksthatburn on Twitter and congratulations for being this week’s winner!
Thomas: Alright, thanks so much for listening, thanks again to Alison Gill for coming on, great interview, really good stuff about that State of the States Report. Go check it out and get active, see what you can do in your State. [Laughing] Maybe you’re not as lucky as I am, maybe you live in a terrible State like Maryland or something, you know? One of those awful red States.
Andrew: [Sighs] Oh, yeah.
Thomas: [Laughs] Alright, thanks for listening and we will see you for a Rapid Response Friday!