Luke Goodrich: Is Religious Liberty in Danger?

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This is a podcast episode titled, Luke Goodrich: Is Religious Liberty in Danger?. The summary for this episode is: <p>Today on Truth Over Tribe, we have Luke Goodrich joining us to discuss religious liberty. Luke is the Senior Counsel at the Becket Fund for Religious Liberty, arguing (and winning!) essential cases before the Supreme Court. He's also the author of the book, Free To Believe: The Battle Over Religious Liberty in America. You'll hear Luke and <a href="" rel="noopener noreferrer" target="_blank">Keith</a> discuss the ways religious liberty has been used as a cover for discrimination and they'll suggest how Christians should approach this foundational, American freedom. To conclude, the two dissect the infamous Equality Act and explain how it could prove to be a danger to the future of religious liberty. Tune in now!</p><p><br></p><p><strong>Ok, truth time... Did you like this episode?</strong> Tell us by leaving a rating or review! 🌟🌟🌟🌟🌟 If you did, you won't want to miss what's next (so subscribe now!). And help a friend by sharing this with them. Thank you! πŸ™</p><p><br></p><p><strong>Plus, the conversation is just beginning! </strong>Follow us on <a href="" rel="noopener noreferrer" target="_blank">Twitter</a>, <a href="" rel="noopener noreferrer" target="_blank">Facebook</a>, and <a href="" rel="noopener noreferrer" target="_blank">Instagram</a> to join in on the dialogue! <strong>Want to learn more about Truth Over Tribe?</strong> Visit our <a href=";utm_source=Show%20Notes%20" rel="noopener noreferrer" target="_blank">website</a> and subscribe to our weekly <a href=";utm_source=Show%20Notes%20-%20website" rel="noopener noreferrer" target="_blank">newsletter</a>.</p><p><br></p><p><strong>Resources:</strong></p><p><a href="" rel="noopener noreferrer" target="_blank">Free to Believe: The Battle Over Religious Liberty in America</a></p><p><a href="" rel="noopener noreferrer" target="_blank">Subscribe To Our Blog</a></p><p><a href="" rel="noopener noreferrer" target="_blank">How Tribal Are You?</a></p>
Should Christians think about the presidential vote in terms of who they will appoint to the court?
01:15 MIN
Luke's thoughts on the idea that religious liberty is a cover for discrimination
02:09 MIN
How discrimination is dealt with legally, and how Christians should respond
03:26 MIN
What are people of all faiths allowed to bring their faith into?
01:56 MIN
The dangers to religious liberty in the Equality Act
01:53 MIN
Lessons we can take from Quakers
02:31 MIN
How the Beckett Fund decides what cases to take on
02:07 MIN

Luke Goodrich: I'm Luke Goodrich, I choose Truth Over Tribe.

Patrick Miller: Are you tired of tribalism?

Speaker 3: I think a lot of what the left supports is satanic.

Alexandria Ocasio-Cortez: The only time religious freedom is invoked is in the name of bigotry and discrimination.

Patrick Miller: Are you exhausted by the culture war?

Speaker 5: If they don't like it here, they can leave.

Speaker 6: You can put half of Trump supporters into what I call the basket of deplorables.

Patrick Miller: Are you suspicious of those who say Jesus endorses their political party?

Speaker 7: Is it possible to be a good Christian and also be a member of the Republican Party? The answer is absolutely not.

Keith Simon: From certainly a biblical standpoint, Christians could not vote democratic.

Patrick Miller: We trust the lamb, not the donkey or the elephant.

Keith Simon: This is the podcast that's too liberal for conservatives and too conservative for liberals.

Patrick Miller: I'm Patrick Miller.

Keith Simon: And I'm Keith Simon. And we choose Truth Over Tribe.

Patrick Miller: Do you?

Keith Simon: If you've been paying attention at all, then you know that Supreme Court is at the center of just about every controversial issue that's being discussed in our culture. Some people say that the court is playing too big of a role, is taking on too much responsibility, it has too much power. Christians are worried that the court is going to cut back on religious liberty. That's why I'm really excited today to talk to Luke Goodrich. If you're unfamiliar with him, let me give you just a little bit of a bio. Luke Goodrich is the Senior Counsel at the Becket Fund for Religious Liberty. He's argued and won several important cases before the Supreme Court. Among his clients have been Hobby Lobby and the Little Sisters of the Poor. He's also the author of a great book. It's called Free To Believe; The Battle over Religious Liberty in America. That book was recognized by the Gospel Coalition and World Magazine as the best book in its category in 2020. Today on Truth Over Tribe, we're talking all things Supreme Court and religious liberty with an expert; Luke Goodrich. Let's go. Luke, welcome to Truth over tribe.

Luke Goodrich: Keith, thanks so much for having me.

Keith Simon: Well, I said that I have been looking forward to this conversation, and it's not because I am a constitutional scholar. I've never been to law school, although I wish I would have gone at some point. The reason I'm looking forward to this is because I understand that the Supreme Court has become such a central figure in our culture, and the one who is going to decide these really important religious liberty cases. I hope that you can help us understand the role of the court in the culture, as well as how to balance out these religious liberties with personal sexual liberties in our culture right now. So if it's okay with you, we're just going to jump into the deep water, are you okay with that?

Luke Goodrich: Go for it.

Keith Simon: In May 2016, then the Republican nominee, or almost officially the Republican nominee, Donald Trump, comes out with a list of names, and he says, " I'm going to pick a Supreme Court justice much like the people on this list." I don't know if he specifically committed to pick one of those names, but that's what he was hinting at. And it seemed like a political move, he wanted to shore up his conservative base to be excited about it. But what I think it for sure revealed is that the Supreme Court is a really important institution in today's culture. I'm just wondering if maybe the Supreme Court has become too powerful, not by its own making, but by the position that we as a culture have put it in. It's arbiter of what's right and wrong truth and justice. What do you think? Is the Supreme Court too powerful right now?

Luke Goodrich: I got to be honest, I think that maybe asked the wrong question. There's plenty of talking points out there that the Supreme Court's too powerful or not. And really often, that's just a criticism levied when somebody doesn't like the latest decision from the Supreme Court. So if it strikes down traditional marriage laws, and you like traditional marriage law, oh, yeah, the Supreme Court is way too powerful. But if it protects Hobby Lobby, or the Little Sisters of the Poor and their religious freedom, and then the left says, "Oh, you got a conservative Supreme Court run rampant." I think, of course, too powerful, it's often the label, and it just gets wielded by whoever is upset at the latest decision. So I tend to think about the Supreme Court in terms of a broader scheme of government, the three branches, how the founders set it up, and try to think through the Supreme Court's decisions. That's what it's been doing since it was founded, is deciding cases. It may have been deciding more cases, or fewer cases, or cases that have a greater impact on everyday life, or it may decide more cases on hot button, political issues. But look at the cases it's deciding, and rather than just slapping a label, too powerful or not, engage at the level of individual decisions. What did it really decide, and is that good for our country or not? Is it faithful to the Constitution or not? And try to take it one level deeper below those, sometimes tribal labels of too powerful or not?

Keith Simon: Yeah, I appreciate that. I think that the court is labeled activist, an activist court as a pejorative when it decides in a way that you don't want it to, so that makes sense. But it also seems that the court has got caught up in the partisan ship that is overtaking the country. And that the court has a high degree of respect by people, but I wonder if that is somewhat being undermined because people are trying to say, well, is this a Republican appointee, a Democratic appointee? And they're measuring people's votes, not like you said, based on the Constitution, but based on the party affiliation of the President, not the justice, but the President of who appointed them. Do you think Chief Justice Roberts is doing some things to try to take the partisanship out of the court to build a greater trust in the court's decision?

Luke Goodrich: I think all of the justices really care a lot about the reputation of the court and how it's perceived. I think they honestly view their job, and accurately view their job as largely apolitical. The vast majority of cases that the Supreme Court decides, nobody's ever heard of. Most people can't even name more than one justice on the Supreme Court. And the vast majority of the courts work is just done in relative obscurity. It's just a very small, minuscule slice of the court's caseload that has huge implications, political implications for the entire country that gets latched on to by the general public, understandably so, and then there's a big fight right now, either to discredit the court as overly political for decisions that I don't like, or to defuse the allegations of politicization if I do like the outcomes. And you see this on the current case involving abortion, on the Dobbs case, there's a lot of lobbying and political arguments around that case in advance. You've also seen it with a number of our cases at the Becket Fund, like the Hobby Lobby case, and the Little Sisters of the Poor case, basically trying to discredit opinions that someone doesn't like as being too political. But bottom line, I think the court in general, most of its work is not political, and the ones who are really politicizing it tend to be more the news media, or whoever's trying to criticize the latest decision from the court that they don't like.

Keith Simon: It's usually dangerous when part of the country doesn't like a decision, and their response is to discredit the court, because it undermines the court's independence, undermines the credibility and pulls it into the partisan warfare. And that seems really dangerous for the country. A lot of Christians, when they walk into the voting booth, are thinking, how do I place my vote here? One of the big criteria of who they choose to vote for is based on who that President will appoint to the Supreme Court if there happens to be a vacancy during the term. Should Christians think about their presidential vote in terms of who that person will appoint to the court?

Luke Goodrich: That's a huge question. I'll just preface by saying I'm not here to tell anybody how to vote. My work is winning cases in the Supreme Court, not trying to tell Christians how they should vote. But I would say it should be a factor. I mean, how the President is going to appoint various justices is one relevant factor, because the court makes decisions that affect everyday Americans, from the powerful to the powerless, and is there to protect fundamental constitutional rights, and we want the Supreme Court to do justly. So it's a factor. I wouldn't say you need to make it the overweening factor in your vote, and there's a whole host of things that Christians should consider when they go into the voting booth. I even put in a blog not to consider only the presidential election, but all of the down ballot votes that have huge impacts on everyday life, and consider wielding the tremendous privilege of vote. Think of it as a way of loving neighbor, and how can I use this gift, this God given ability to influence the political process, how can I do that in a way that best loves my neighbor? How that gets worked out among various Christians, I do many, many podcasts just on that question.

Keith Simon: Yeah. That makes sense. I just think 20, 30 years ago, if you had asked Christians walking into the voting booth, what issues most concern you as you place your vote? I don't think they would have said the Supreme Court. Now, I could be wrong about that. I don't have any data to back that up, but I think it's risen, the importance of the court has risen and how Christians think about their voting. And maybe like you said, that's wise, as long as not taken to an extreme. So in your book, Free to Believe, you talk about one of the issues that are going to confront the court and Christians is the sexual liberties or the sexual revolution. In February 2020, in a congressional hearing, the congresswoman Alexandria Ocasio- Cortez said this, let's listen to it.

Alexandria Ocasio-Cortez: The only time Religious freedom is invoked is in the name of bigotry and discrimination.

Keith Simon: Luke, I'm sure you get the criticism that religious liberty is just cover for discrimination. What's your response to that?

Luke Goodrich: Religious liberty is a founding principle of the nation, and it protects people of all faiths. You didn't hear that criticism 20 or 30 years ago when many of the plaintiffs were Native Americans, or Muslims facing restrictions on their religious practices. And even as late as the 1990s, Supreme Court issued a bad decision on religious liberty that harms Native Americans, and you had a overwhelming bipartisan response to that bad Supreme Court decision, culminating in a really important civil rights law called the Religious Freedom Restoration Act. It was unanimously passed in the House, passed 97 to three in the Senate, and signed into law by President Bill Clinton. It's a law that protects people of all different faiths. What you have seen since 1993, the last 25 to 30 years, you've seen a massive shift in American culture, where traditional religious Christian beliefs and practices around absolute truth, around abortion and around human sexuality, those traditional Christian beliefs have become viewed as a threat to modern culture, whereas the congresswoman put it, a form of bigotry. That shift in our prevailing culture to treat traditional Christian beliefs as a threat has prompted a huge number of religious freedom conflicts, particularly involving traditional Christians. And so, over the last 20 years, you've seen more religious freedom conflicts involving Christians, and you've seen those on the side of the political spectrum who are hostile to those Christian beliefs attempt more and more often to discredit the notion of religious freedom. And then as you saw, in the clip, call it a cover for bigotry. But really, what's going on is religious freedom is a bedrock principle, it protects people of all faiths, and depending on whose ox is being gored or which religion is invoking the right, you have people trying to discredit the right.

Keith Simon: You're right, the Christians are being called bigots because of their discrimination against sexual minorities, or at least that is the charge. And oftentimes, Christians are told that in 100 years, their bigotry will be very similarly viewed as say, racial bigotry against African Americans, which we know our country has a horrible history of that. So if you're a Christian, and you're told, " Hey, look, you're no better than a Klan member because you are not hiring maybe a gay man to pastor your church, or because you support discrimination against transgender people, you're just like a Klan member. You are practicing something that 100 years, your ancestors will be embarrassed to be associated with you." How is you as a Christian, do you respond to that? I guess you would say, equalizing of discrimination based on sexual liberties and discrimination based on racial identity.

Luke Goodrich: There's a Christian theological response, there's also legal and constitutional response. And since the latter is my area of expertise, I'll start there. The way this argument is deployed right now, we're seeing tons of legal conflicts involving religious freedom and LGBTQ rights. This spans a spectrum. It can be employment cases, like you mentioned, I'm representing a religious school right now that declined to renew the contract of a guidance counselor who entered a same sex marriage in violation of her contract. So you see it in the employment context, you see it in the public accommodations context. I'm representing doctors and hospitals right now where the Biden administration issued a regulation that requires them to perform gender transition procedures like cross sex surgery, in violation of their conscience and medical judgment. And then you see it in the context of like government benefits or contract programs, like our most recent case at the Supreme Court, the city of Philadelphia cut off a contract with Catholic Charities and tried to shut down 100- year- old ministry that was recruiting families to provide loving homes for foster children, and said, " You guys are a bunch of bigots, we're gonna shut you down." So we're seeing these legal conflicts across a wide variety of areas. And then as you mentioned, one of the main legal arguments we see is you are discriminating, you're just as bad as people who engage in race discrimination. Just like you couldn't fire someone for entering an interracial marriage, you shouldn't be able to fire someone for entering a same sex marriage, or just like Catholic Charities in your adoption and foster care ministry, you couldn't decline to place children in the homes of an interracial couple, you shouldn't be able to place children in the homes of a same sex couple.

Keith Simon: And that's a powerful argument, right? I mean, when you get confronted with that, I think a lot of Christians are caught flat footed because nobody wants to be the new Klan member, nobody wants to enforce a sexual Jim Crow. So I think you lay out the problem really well there. My guess is that most people listening are thinking, how would I answer that charge? So hopefully, you're going to give us a little help.

Luke Goodrich: Yeah. My expertise is on the legal argument. As a legal matter, race discrimination has a unique history in our nation. We had over 300 years of slavery based on race, we fought a civil war based on race, we had a systematic government imposed segregation based on race, and then we had three constitutional amendments to address our tragic history of race discrimination. So the way this played out historically is that African- Americans faced systematic, government imposed barriers to full participation in the social, political and economic life of our community. And because of that unique history, no other group except perhaps Native Americans have suffered the way African- Americans have. And because of that history, the government is given very unique tools to root out race discrimination, tools that it's not given for any other form of discrimination, whether based on religion, sex, marital status, or anything else. And so you see this reflected in the law. Just one example, all 50 states have laws banning race discrimination in employment, and there are not really religious exemptions to those laws. Like if you're an employer, and you fire someone because of their race, and you claim it was a religious belief, you lose. By contrast, when it comes to sexual orientation discrimination, there are only 22 states that right now ban sexual orientation discrimination in their state employment laws, and all 22 of those states have religious exemptions. This is simply a recognition that different kinds of discrimination warrant different legal treatment. And even the Supreme Court has recognized this. You see this in the 1967 decision, Loving versus Virginia where the Supreme Court struck down state bans on interracial marriage, the Supreme Court went out of its way to condemn the beliefs underlying interracial marriage bans as invidious relics of white supremacy. But then fast forward to 2015 in the Obergefell decision where the Supreme Court struck down traditional marriage laws, and the Supreme Court went out of its way to do the opposite. It said, traditional marriage laws are" based on decent and honorable religious and philosophical premises that have long been held and continue to be held in good faith by reasonable and sincere people here and throughout the world." That's a mouthful, but the Supreme Court is basically saying, we recognize that race discrimination and a belief in traditional marriage are very different beings, and the law should treat them differently. So, that's the legal response. I'm not a theologian, but we also need, as Christians, to be ready with a theological response, which I think really entails laying out the beauty of how God created us as male and female, and the beauty of human sexuality and its intended good within the bounds of marriage and be able to speak about that articulately. And then also as Christians, I mean, one of the key moves here is really the need to love our neighbor, and we have not always done that with respect to our LGBTQ neighbors. And that really needs to be first and foremost in our minds, is how do we best love our neighbors, not necessarily how do we win an argument or how do we defend our rights?

Keith Simon: You said a bunch of good stuff there. Let me go back one second to what you mentioned the case of the city of Philadelphia against Catholic Charities. The issue, if I understand it right, is that the Catholic Charities refused to let gay couples, same sex married couples adopt children. Therefore, the city of Philadelphia refused to let Catholic Charities run their adoption service in the city. That made it all the way to the Supreme Court, and that case was decided nine zero, a unanimous decision. Can you help us understand what was at stake in that case, and why it's so important that it was a nine oh ruling?

Luke Goodrich: You're right, it was a nine to zero decision, unanimous. Just want to make clear, we won that case nine to zero. I think to understand what's at stake, it's important to understand just a little bit more about the facts. This was 100- year- old ministry, the Catholic Church had been doing this foster care ministry long before the city of Philadelphia ever did. What they were doing is recruiting families, and they'd go out and recruit families who are willing to provide loving homes for foster children. They had no specific beef against LGBT couples or families. They're simply operating according to Catholic Church teaching, which is married man and woman is how you form a family. They also didn't place children or recruit families of unmarried heterosexual couples. So it was not specifically about LGBTQ individuals. And also, Catholic Charities is only one of over 20 Private foster care agencies within the city. And so, Catholic Charities was not stopping any family, any couple from adopting. They'd never actually been asked by an LGBTQ couple in over 100 years to help them with foster care. So what happened was the Philadelphia Inquirer, a local newspaper, published an article saying, the city partners with Catholic Charities, and they don't place children with same sex couples. They are a bunch of bigots, and our city shouldn't be doing this. And then city officials after that news article said, " You know what, you're right. Catholic Charities, we are cutting off your contract because you're bigots. We disagree with your religious beliefs." And when they cut off that contract, you can't do foster care in the city without a contract. So what's at stake here, at the very minimum is 100- year- old foster care ministry being shut down. But what's at stake much more broadly, is government's partner with religious organizations all the time, not just foster care, it could be homeless ministries, could be soup kitchens, all kinds of partnerships. And so, what's at stake is, can the government say, we think your religious practices are discriminatory, and we want nothing to do with you, and we're going to cut off all partnership with you, and in many cases, would just shut down religious ministries, but it also really harms the poor people and needy people who religious ministries are serving. So we went up to the Supreme Court, we took this case to the Supreme Court. It's important to note we lost in the trial court, we lost in the court of appeals. So this is not a foregone conclusion that we would win at the US Supreme Court, but our basic argument was under the US Constitution, the City Philadelphia is violating what's called the Free Exercise Clause, a law that says the government can't make laws prohibiting the free exercise of religion. And by branding these religious practices discriminatory and cutting off a government contract, and shutting down the religious ministry. It was violating the free exercise of the Constitution. The Supreme Court agreed with us nine to zero, and said Philadelphia cannot shut down this ministry.

Keith Simon: Religious liberty is on pretty solid ground right now, isn't it? I think there's like a... was it 14 or 15 case winning streak right now before the Supreme Court?

Luke Goodrich: Yeah. Over the last decade, if you look just at the Supreme Court, there have been 19 Religious freedom cases decided, and 18 of the 19 Supreme Court religious freedom cases have been wins. 18 out of 19, that's pretty good winning percentage. A lot of people think, oh, those are like five to four decisions were hanging on by a thread. No, 14 of the 18 decisions were decided either unanimously or by a supermajority of the Supreme Court, like six to three, seven to two. So, if you look just that those Supreme Court cases, we are doing fantastic. I'm proud to say seven of those cases are Beckett Fund cases that we've won at the Supreme Court. On the flip side, though, I would say a lot of those cases would have been unimaginable 20 years ago. The idea that the government would shut down 100- year- old Christian ministry because the government called them bigots because of their belief in traditional marriage, and the record in the lower courts, not quite as good as the Supreme Court, and we are seeing tons of fights right now all across the country on these issues. But a lot of Christians think about religious liberty, and it's something that's fear inducing. A big part of why I wrote my book; Free to Believe, is to recenter us away from fear and toward a posture of hope, and part of the reason for the hope is we live in America, we have it good here, we're on a big winning streak. But also, ultimately, the hope is not in our Supreme Court winning streak, or winning the next election and appointing more justices, ultimately, as Christians, our hope is in the person of Jesus Christ. And there's no guarantee of victory, there's actually an expectation of persecution. But as we enter into the political conversation, or the legal conversation, or the theological conversation around these issues, we need to be doing so from a place of hope, and a faith in the ultimate victory of God.

Keith Simon: Yeah. I love that answer, because I do think that sometimes Christians given too much to fear, and it's not a good look. So if I understand what you said, there's bad news and good news. The bad news is that more than ever, religious liberty is being contested in the court system, and things that would have never been brought up are now before the courts. The good news is, at least at this point, before the Supreme Court, we've got a pretty good track record, and things are headed in the right direction. But it's always something to be watchful for, and to be praying about. So in the book, I think you phrase it as a good religion and bad Religion, if I remember right. When I was reading that part, I thought of Frank Bruni, when he was talking about the Obergefell decision, and this is when it was before the court, but I think before it had been decided. He said something to the effect that he was happy for people to believe whatever they wanted, as long as it stayed in their pews and their hearts and in their home. I think that's your point, is that the culture considers that good religion. It's privatized, it's in your own life, you keep it out of the public square. But the Free Exercise Clause, I think I could be really wrong here, but I think the Free Exercise Clause says that religion can be out in the public square, and that a Christian can bring their faith with them to work, or to the foster care system, or to schools, that kind of thing. Do I have that right? Help us understand what it is that people of all faiths are allowed to bring their faith into?

Luke Goodrich: Yeah. Some people would try to diminish the free exercise of religion and talk about freedom of worship, and talk about it as something that's confined within the four walls of the home and the four walls of the church. But you're exactly right, the Free Exercise Clause of the Constitution protects the free exercise of religion, which means bringing your whole self into the public square. But I think as Christians, it's not enough to just stand there and bang the table and say, " I have a right to practice my religion in public", I think we could do a much better job of making the public case for why that's good for society. So you think of like the Catholic Charities Foster Care case that we took to the Supreme Court, it's not enough to just sit back there and say, we have a right to run our ministry the way we want. What's really at stake here is 100 years of amazing ministry by Catholic Charities, finding incredible families to provide loving homes for foster children, and you shut that down. The real harm is not I lost my religious liberty, the real harm is children who are not able to be placed in loving homes. Catholic Charities was sitting there with loving homes that had empty beds ready to take in foster kids, and Philadelphia was saying, no, foster kid, you have to stay in an institution, you can't go to this loving home. So as Christians when we're talking about religious liberty, it's not just give me my right to exercise my religion, it's I'm here to serve you. Our religious schools are providing the best education to the neediest students, our religious hospitals are providing the best care to the most underserved populations. So, it's not just give us our rights, it's if you shut us down, look at all the harm that flows from that. We need to be making that case for religious freedom, not just as a protection for me but as a really good benefit for thee as well.

Keith Simon: If you're like me, and you leave each episode with a lot to think about and wishing you could go just a little bit deeper, you should subscribe to the Truth Over Tribe newsletter. Not only do we explore the topic further, but we also interact with people who disagree with us and tell you about upcoming episodes. Just go to choose truthovertribe. com and sign up for the newsletter there. One of the things in the news a lot right now is the Equality Act. If I understand it right, it has passed the United States House of Representatives, President Biden said he will sign it. The only thing standing between it and becoming a law is the United States Senate, the filibuster Joe Manchin, however you want to think about it. I'm not quite sure I understand exactly what the dangers are to religious liberty in the Equality Act. Could you explain that to me?

Luke Goodrich: Yeah. The Equality Act would basically, across this broad spectrum of federal laws, the Equality Act would add a prohibition on discrimination based on sexual orientation or gender identity. It would also forbid any kind of religious liberty protections within that, and even remove some existing religious liberty protections. Now, that's maybe a little bit of a legal jargony answer, but the basic effect of the Equality Act on the ground would be to dramatically intensify all those conflicts I mentioned earlier about religious freedom and LGBTQ rights. That would be in the employment context, religious organizations, nonprofits, churches, religious schools, would be subject to lawsuits for their employment practices, or who they admit to their religious schools. The funding contacts would be a big one, like government contracts and grants. Some of the cases I'm involved in right now for religious doctors and hospitals, some of them are being sued by patients who say I believe I'm a man, I want you to remove my perfectly healthy uterus, and if you don't do that, I'm going to sue you for discrimination. There are lawsuits about that right now. But an even bigger threat is just the federal government saying, oh, you're a hospital, you don't do these things, we're going to cut off all your Medicaid and Medicare funding, and you're going to lose millions of dollars because of your religious practices. So the Equality Act is basically a legal mechanism designed to open the floodgates to both private lawsuits against religious people who hold traditional views on human sexuality, and release the federal government to impose all sorts of penalties, denying benefits, denying funding, denying contracts, denying grants to religious organizations because of their religious beliefs about marriage.

Keith Simon: So if I understand it, the Supreme Court is trying to balance religious liberty and all the other liberties that US citizens are entitled to. It really is a trade off that sometimes those liberties protected the Constitution come into conflict with each other. And so, the court has primarily said that you have your liberties, but we're going to carve out a religious exemption, and the Equality Act removes that exemption, is that correct? It removes the religious exemption?

Luke Goodrich: We talked a little earlier about that Civil Rights Act that was passed in a bipartisan way in the 90s. That's called the Religious Freedom Restoration Act. That's a federal law, and it applies to all activities of the federal government. One problematic aspect of the Equality Act is to say, Religious Freedom Restoration Act doesn't apply to any of these issues anymore. And so, it removed that really important federal law. That's the federal law that protected Hobby Lobby when we won that case at the Supreme Court, protected the Little Sisters of the Poor. The Equality Act would say, this doesn't apply on LGBTQ issues anymore. The thing the Equality Act doesn't do and can't do is remove constitutional protections, because the Constitution is higher than any federal statute. So, if the Equality Act were to say, Philadelphia, you can shut down Catholic Charities and their foster care ministry, well, we can still bring constitutional claims against that and appeal to the Supreme Court, and many of those claims are still winnable. So the Equality Act, bad legislation, would severely intensify the conflicts, but it doesn't take away the Constitution. And it's not the end of the world, because you can still fight it through litigation, but still a very bad litigation and would really needlessly intensify all these concepts.

Keith Simon: Okay, so let's just push a little bit further there. Because if I understood in the book, you said that the Smith decision, which you alluded to earlier, that the majority opinion was written by the late Justice Scalia, it changed I guess, the burden of proof, or where the responsibility lie, to show that religious liberty was in jeopardy. I know I'm getting this wrong, I want you to help clarify it. But RFRA, the Religious Freedom Restoration Act, that's what was signed under President Clinton and again, passed virtually unanimously through the United States Congress, it changed where the burden of proof lie. So when you say the Equality Act would undo RFRA, that's a really big deal, right? Because, yes, we could go to the constitution, but then the way Smith was decided before the court that really hampers religious liberty. Correct?

Luke Goodrich: Yeah. Yeah. You got it right. Back in the'70s and'80s, when the Supreme Court had a case about the Constitution, the Free Exercise Clause, it basically used a balancing test. And it said, if the government is burdening your religious practices, then the government has to show it has this really powerful reason for doing that, and there's no other way to accomplish its goals without suppressing religion. So it was this really good standard that protected religion really robustly. And then you mentioned the Smith decision, that was in 1993, it involved a Native American who was punished by the government for possessing peyote. It's a drug. It's been used in Native American religious ceremonies for over a millennium, and the Supreme Court had this case and basically ruled that the state of Oregon, it had criminalized the possession of peyote, criminalized the central sacrament of Native American religious practices saying it's back in prohibition, saying alcohol is illegal, and you can't have it for communion, criminalizing the sacred sacrament of Native Americans. The Supreme Court looked at this and said, does this violate the Free Exercise Clause? And you would think the answer would be obviously, yes. But in a shock decision, the Supreme Court said no. It said, really what the Free Exercise protects is government targeting and intentionally going after religious practices, and Oregon, they weren't thinking about Native Americans when they passed this ban on peyote, they banned everybody from possessing peyote, not just Native Americans. So Native Americans, you lose. And so that really gutted a lot of the protection of the Free Exercise Clause. That's why Congress in the bipartisan manner passed the Religious Freedom Restoration Act. It has been a hugely successful law, really beneficial to religious groups all across the spectrum, and why the Equality Act gutting refer would be such a problem. The one quote I would add on the end of that is that since the Smith decision, part of our litigation strategy of the Becket Fund has been, how can we breathe more life into the Constitution? How can we move the Supreme Court to a more protective vision of the Free Exercise Clause? And we really accomplished a lot of that in the Catholic Charities case that I've mentioned. So RFRA is hugely important, But the constitution provides a lot of protection as well. And I'd say we need both, and we want both, and that's part of why the Equality Act is so bad.

Keith Simon: Well, I wanted to spend a little bit more time on the Equality Act, because it's in the news now, it's a current thing, and I think there's a lot of confusion about it. Plus something called the Equality Act, who wants to be against that? So there's something intuitive about saying, yeah, I'm for equality, but of course, Congress sometimes hides what they're really doing behind the names of their bills. One of the things I really appreciated about free to believe is that you don't treat religious liberty primarily as a political issue or even a legal issue. The whole first third of the book treat it primarily as a faith issue, and you tell the story of Quakers and the way they live literally changed the laws, the legal system, how religious faith is talked about, and we can learn a lot, I think, from the Quakers. So can you just tell us a little bit about the Quakers role in the development of religious liberty? And maybe what are some lessons that we as Christians could take from them?

Luke Goodrich: Yeah. It's a fascinating history, I'd encourage you to grab the book, Free to Believe, also a book called The Right to Be Wrong. But it starts in the colonial era when Quakers started seeking refuge here. The two beliefs that were so problematic in the early colonies were number one, the Quakers refused to bear arms in the colonial militias, and then number two, they refuse to swear oaths. The militia service was a big deal, because back then, the whole national defense was the militia. It's pretty small, and a few people refusing to serve could really compromise national defense. Quakers, they were beaten, they were fined, they were imprisoned for their refusal to serve in the colonial militias, but their religious beliefs about non- violence rooted in the Sermon on the Mount, they just stood firm. They, in terms of Hebrews, talks about you joyfully accepted the plundering of your property. That's how the Quakers were. They were like, you can do anything to us, but we are not going to take up arms and kill our fellow human beings. Over time, after tremendous oppression of the Quakers, but also tremendous heroism on the part of the Quakers, the colonies realized, we're not getting anywhere here. Like we can find them, we can imprison them, they're not going to serve in the military, and this isn't doing any good. It's just provoking a bunch of conflict. And so over time, the colonies gradually adopted accommodations for conscientious objection to military service, which we still have in our law today. And really, that principle of conscientious objection was bought at the price of the suffering of the Quakers. I think one of the main lessons for us today is that sometimes you can get religious freedom by being a powerful majority in society and just enacting your religious protections into law. But Christians today are not a powerful political majority, and in some issues, we're a minority. And so we need to be prepared for potential suffering, again, nothing compared to what our brothers and sisters are going through in Afghanistan, or North Korea, or elsewhere. I'm not trying to equate those two. But like the Quakers if we really believe what we say, we believe we need to be prepared to suffer for it, to do so joyfully. And sometimes, just being joyfully immovable in the face of government penalties is what ends up earning your right to religious freedom, and the law bends itself to accommodate conscience.

Keith Simon: Yeah. You said that Christians right now are not a powerful political majority, and yet sometimes I think we think we are right. We harken back to someday, maybe in the Eisenhower administration in the'50s when there was a civic religion that embraced Christianity, but we don't live in that day anymore, and it seems like all of us, as Christians need to be prepared to live out our faith, regardless of what the government says we can and cannot do. And not in an antagonistic way, but in a humble Christ centered way. It paid off for the Quakers. They stuck by their convictions, and maybe we need to be willing to have our property plunder like Hebrews 10 or to be imprisoned. Maybe that will become our way. I hope not, and you and the Becket Fund are doing everything you can to protect those religious liberties, which are very valuable. So I don't want, in any way, say they're not a big deal. They're a huge deal. However, we need to be willing to live out our convictions, even in times of trouble. Speaking of you being with the Becket Fund, vice- president senior counsel, I bet you that a lot of people think you only take Christian cases, but I know that's not true from reading your book. But how do you guys decide what cases to take?

Luke Goodrich: Yeah. Beckett is one of the nation's only law firms that is dedicated to defending religious freedom for people of all faiths. So we defend everybody from A to Z. We say inaudible, and everyone in between. I've had cases on behalf of Muslims, Christians, Buddhists, Hindus, Jews, Native Americans, Sikhs, Santoros, you name it.

Keith Simon: I don't even know what all those are.

Luke Goodrich: Yeah. Well, we have tremendous religious diversity here in our wonderful country. I think there's legal, theological and practical reasons why it's important to care about religious freedom for people of all faiths. When I talk about this with Christians, some Christians say like, " Hey, why would you defend religious freedom for a Muslim, or for a Sikh, or somebody like that?" And I'd say, " Three reasons. One is just as a matter of pure self- interest, like say you don't care about other religious groups at all. Well, your religious freedom is bound up with their religious freedom, and the precedent set in their case are going to affect your case." I don't think that's the best reason to defend religious freedom for people will face. But even if I can't get you on board with other reasons, just as a matter of pure self interest, that makes sense. The main reason I encourage people to defend religious freedom for people all faiths, is that it's a fundamental human right rooted in who we are as human beings, and it's a basic issue of biblical justice. The way that God created us is for relationship with him, and we can't enter into that relationship under compulsion. We can only do it as a response, and as a matter of conscience. And so when the government tries to intrude into that human response to God, it's exceeding its God- ordained boundaries and committing an injustice, and it's also violating who we are and who we're created to be as human beings. And everybody's created with this thirst for God, and the only way we can act on that is as a matter of conscience. And so whether the government is interfering with that for a Christian or interfering with that for someone of another faith, it's an injustice that we as Christians need to stand up against and speak out for the truth.

Keith Simon: Luke, thanks so much for taking time with us. Your book Free to Believe is worth not just one read. I read it twice, and anything I know or what we've been talking about, I learned in that book. It's super helpful. One question I have before you leave is, are you working on another book? You've mentioned one earlier, or do you have any writing projects that you're currently pursuing? Where can we find your stuff? Where are you active on social media, stuff like that?

Luke Goodrich: Yeah. You can find me on Twitter at @ lukewgoodrich, there's also lukegoodrich. com. If you really want to follow cases and what's going on in Supreme Court and lower courts, I'd say, check out beckettlaw. org, that's the Becket Fund's website, and if you follow that, you'll be up to speed on all the latest religious freedom cases. As for other books, right now, I am full up on litigation. I'm up to the neck in litigation, my wife and I, we also have eight kids age 14 and under, we're homeschooling them and basically trying to form our kids in the faith. So I don't have a lot of outside writing projects right now, but Free to Believe was something that was like the fire and the bones they talk about where I had encountered so many Christians who were very worried and fearful about where our country is headed on religious freedom. I've been doing this for over a decade and I felt like, " Hey, I have something to offer here and I need to offer it. How can I help just ordinary Christians understand why does religious freedom matter? How is it threatened today? And how can we as Christians respond and preserve it?" So that's why I wrote Free to Believe. But mostly I'm a dad, and a husband, and a bit of a litigated right now.

Keith Simon: Would you close out our time talking, Luke, by praying for our religious Liberty for Christians being willing to live out our convictions and suffer, and maybe even just pray for Christians around the world who don't live in the same kind of country that we do. Would you pray for us?

Luke Goodrich: Yeah. Be glad to. Father, we declare that you are good, and that you are all powerful, and that you are trustworthy. And we thank you, I thank you as an American for what you've done in this country and the incredible freedoms that we enjoy, the ability to live out our faith, the many victories in the Supreme Court that you have provided. I pray that we could be faithful in that. That we would walk not primarily to win arguments or cases or politically, but that we would walk humbly and faithfully with you, pursuing love of you and love of our neighbors, that we would have those freedoms to love our neighbors and to seek first the kingdom and to seek justice across all aspects of human life. We lift up brothers and sisters all across the world. I think of Afghanistan right now. We're recording on a day where there was a horrific suicide bombing and people harmed, and there are Christians in Afghanistan who I've been in touch with by degrees of separation. There are Christians in North Korea, there are Christians all over the world facing things that we have never even dreamt of in our country, and you say, remember those who are in prison as if you are in prison with them. And so we remember, we repent for failing to remember, and we pray for our brothers and sisters. Have mercy on them, protect them, help them to be faithful to the end, help them to trust you, give them relief from suffering and persecution. We know persecution is not a good thing. Give them relief, give them justice, give them a taste of the justice and the freedom that we have here, and please let their story inspire us to be faithful in our everyday lives, and love those you've called us to love. For the glory of your name, the name of Jesus. Amen.

Keith Simon: Amen. Thanks for listening. If you found this podcast helpful, make sure to subscribe and leave a review.

Patrick Miller: And make sure it's at least five stars. Stop. No, just be honest. Reviews help other people find us. Okay. At the very least, you can share today's episode, maybe put it on your social, your favorite text chain.

Keith Simon: And if you didn't like this episode, awesome. Tell us why you disagree on Twitter @ truthovertribe_. We might even share your thoughts in an upcoming newsletter.


Today on Truth Over Tribe, we have Luke Goodrich joining us to discuss religious liberty. Luke is the Senior Counsel at the Becket Fund for Religious Liberty, arguing (and winning!) essential cases before the Supreme Court. He's also the author of the book, Free To Believe: The Battle Over Religious Liberty in America. You'll hear Luke and Keith discuss the ways religious liberty has been used as a cover for discrimination and they'll suggest how Christians should approach this foundational, American freedom. To conclude, the two dissect the infamous Equality Act and explain how it could prove to be a danger to the future of religious liberty. Tune in now!

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Today's Host

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Patrick Miller

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Keith Simon


Today's Guests

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Luke Goodrich

|Religious Freedom Attorney, Becket Fund for Religious Liberty