Come back everybody, our next speaker is Professor Jay Wexler, he is a professor of law at Boston University School of Law, where he's one among other things, the Michael Melton Award for Excellence in Teaching. He is the author of six books, more than two dozen law review articles in the journals. And he's also written for the popular media, including Boston Globe, Washington Post, Newsweek, Slates by USA Today, Vox and other venues. He clerked for Judge David Tatelle in the Circuit of Appeals, and then for, it pains me to say it and everybody to hear it, the late Gustus Ruth Bader Ginsburg. Professor Wexler is also the author of a study and puts that in his official bio and quotes, a quote study unquote, of Supreme Court humor. So no further ado, take it away, Professor Wexler and somebody who does not have their microphone muted is typing. Well, thank you so much. I was hoping to be giving this talk from my office in Boston, but instead I'm in this Airbnb here in Washington, DC, because I had to come down in the moments noticed to participate in Justice Ginsburg's Memorial, which I have to say is probably one of the most moving things I've ever participated in. So I'm a little bit withered at the moment, but I'm going to push through. And I want to thank the dean of Roger Williams and Professor Bogus and the FFRF for putting this together. What an honor it is to be presenting alongside my co-panelists, scholars, and thinkers. I actually don't know quite how I squeaked in here, but that's okay. I'll move forward. The title of course of the conference is Is This a Christian Nation? And as I had published a book right before my invitation arrived that is called Our Non-Christian Nation, I think the organizers might have known what my answer to the question was going to be. The paper that I wrote for this conference, and then I'm going to talk about today is kind of an epilogue to the book. It addresses an issue that is directly related to what I was writing about, but hadn't gotten far enough for me to actually address in the book. So I'm going to talk about it here. And the question is, what happens when a town or a county or some other jurisdiction that starts its meetings off with an invocation or a prayer decides to prohibit secular invocations from that invocation program? What's lost when that happens? And is that exclusion unconstitutional? And the short answer is a lot is lost. And yes, it's unconstitutional in my view. But in order to take, to talk about those questions, I need to back up a little bit and speak briefly about the book itself and what its argument was. And then after I do that, I'll turn to the specific question of these secular invocations. So the book grew out of two straightforward, I think, observations about the United States that other speakers have discussed already. First of all, that in the past couple of decades in a series of cases, the Supreme Court has significantly opened up public life to religious participation, public life in the sense of access to government funds, property and institutions. And then second, the second fact is that at the same time the court's doing that, the nation is becoming more religiously diverse, less Christian. And this diversity includes the growth of the so-called nuns, people who do not believe in religion at all or atheists or other variations. And the question of the book is, what should religious minorities, including secularists, in which I include myself as an atheist, what do we do in this post-separation of church and state kind of world? What does a religious minority do when the court has let religion into public life? Now let me say a little bit more about the first point, what I'm specifically referring to when I say that the court has opened up religion, has opened up public life to religious participation. I'm talking specifically about four areas of church state law which the Supreme Court has weighed in on in the past two, three decades. First area is government money, that in the case of particularly Zelman, Cleveland-Vatric case but also Mitchell versus Helms and Espinosa, the court has basically allowed government to fund religious institutions so long as it does so in a formally appropriate way, which is not so hard to arrange. So we have lots and lots of government money going, for example, to religious schools. Second is government property and religious displays. So in the Van Orden, the Ten Commandments Monument case that Professor Green was talking about earlier, American Humanist Association, the one about the gigantic cross, and other cases the Supreme Court has basically said that many religious displays can be placed on government property without violating these standards. Third area has to do with government public schools and religious access to those schools. And here I'm talking about the Good News Club line of cases, which basically says that if a school opens up its classrooms, for example, its property after school and lets sort of clubs and such use it, they cannot exclude religious organizations or clubs from using those rooms as well. And so that's resulted in quite a few of these Christian Good News Clubs opening up in public schools around the country. And then fourth and finally, government meetings and the practice of giving invocations before government meetings. So this is what I'm going to talk about most here. In the Marsh case and the Town of Greece case that have been discussed already, the Supreme Court has basically allowed town boards and legislatures to open up each of their sessions with a prayer specifically to Jesus Christ, our Lord and Savior. So in all of these areas, it's now clear if it hadn't been before that wide scale religious participation is allowed. And the question is, what does a religious minority do in such a situation? Because the typical, I think, response of religious minorities to the issue of religion in the public square is to stay out of it, is to fight in the courts to get religion excluded from government support and not to partake in religious participation in public life. So what do we do now? Of course, we can continue to fight in the courts and FFRF and Americans United do great work in arguing these cases that are at the margins. But I don't think we're going to get very far in turning the clock back on separation of church and state with our current court, with our Kavanaugh and Justice Gorsuch and Justice Alito and maybe tomorrow we'll find out also perhaps Justice Amy Coney Barrett, who I actually clerked with. She was a Scalia clerk when I was a Ginsburg clerk. So the fact that she might replace RBG is almost too much for me to process. So what options are left if we can't continue to fight in the courts? Basically two, either religious minorities stay home and cede the public square to Christianity or change their approach and seek to participate in public life alongside Christians by asking for government money, putting up public displays, starting clubs in public schools and giving invocations. Because the cases that I went through earlier are, they all involve Christians of course, but they're not limited to Christians. And in the court in at least two lines of cases, the kind of Larson versus Volente, no discrimination against a religion, a particular religion line of cases. And then the no viewpoint discrimination line of cases under the free speech clause, the court has said you can't, the government can't discriminate against certain religions award certain viewpoints. So minority religions, presumably can partake and take advantage of all these cases. So that's the premise. And then the book makes two claims. One is descriptive and one is normative. And most of the book is really descriptive. It describes how religious minorities, including secularists, have done this increasingly in recent years. Think about things like Muslim voucher schools. And the book goes into how sometimes when Christian legislators who are legislators who are really in favor of voucher programs find out that there are in fact Muslim voucher schools, their support disintegrates. Think about Wiccan symbols on public property. Think about secular clubs and public schools. There's a great organization, great from my perspective anyways, called the secular student alliance, which helps high school and college students start secular clubs in their in their public schools, invocations by Hindus and others in front of legislative bodies and town boards, etc. There's a lot in the book about my favorite religious organization, the satanic temple. But I won't get into them right now. So that's the descriptive point. The normative point is that this, what I think is a somewhat counterintuitive development is a good thing. One that we should celebrate and continue, particularly, I mean, especially given the current court and there's and given that there's really no other option. This is really the only thing religious minorities can do.  I think it's quite empowering for minorities to exercise rights to equal treatment. I think it's much more empowering than simply recognizing that one has the right. I do also think that the more religion that we have in public in the public square and the more different religions, particularly, the more educated our citizenry might become about religion and its alternatives. We're a nation that's not very educated about religion. And then finally, and this is the most difficult claim. And I there's it's an empirical claim. And I don't think we have much evidence on it. But I have my hopes that with more religion in public life, we might end up with more mutual respect and tolerance as people learn about religions, different religions from their own and understand that people who believe other things are not in fact terrible people. So basically, the question boils down to do we want a totally Christian public square? Or do we want a public square that really has a lot of different religious and non religious voices, a cacophony of those voices? And I think if you value pluralism at all, then that's really a question that answers itself. So that's the book. And now to make the transition to the specific issue that I want to talk about here. The kicker is that for this pluralism to work and work robustly, the courts have to take the Supreme Court's anti discrimination principle seriously. And they and and moreover, it has to apply that anti discrimination principle to explicitly secular or atheist views of the world, as well as all sorts of religious ones. Otherwise, this pluralism that I'm talking about is would be partial at that best. And you might think that this would not be a problem, given these lines of cases that the Supreme Court has decided. If you can't discriminate on the basis of viewpoint, you can't discriminate on the basis of religion, then it seems like pretty straightforward that you have to include all of these different religious and non religious voices. And before I go any further, I just I'll quickly address the question that's fairly obvious, I think, which is, is atheism of religion here? And I want to make a couple of things clear. What is what I'm talking about atheism, I'm not talking about a public position that is consistent with atheism, I'm not talking about whether public schools can teach evolution or whether that is is an establishment of religion, which I think it clearly is not. What I'm talking about is atheism as truth. And I want to ask this question or pose this question, which I think everybody will answer the same way, which is could the government teach in a public school that atheism is true? That in fact, there is no God. And I think everybody would say they can't do that. And the reason is because it's functionally a religion for purposes of the religion clauses. Now it might not be a religion in some theological definition or anthropological definition might be, might not be, but for purposes of constitution, atheism in that hard sense of there is no God functions as a religion. And that's I think why it can't be taught as truth in the public schools and why I think essentially it counts as a religion for purposes of both the Larsen versus Valentin kinds of cases and also a viewpoint for purposes of the Good News Club viewpoint discrimination is unconstitutional in a lot of cases. But as it turns out, a few jurisdictions around the country have decided that it's not good enough to start almost all of their meetings with a religious prayer to a higher power, but that they also must exclude anyone who doesn't believe in a higher power from ever giving an invocation at a meeting, right? So we're talking about here is policies to exclude atheists from giving invocations and nobody thinks that there's going to be a government unit that's going to have 100 invocations, 95 of which are atheists. Just talking about one or two here and there, but some jurisdictions have actually said no atheist can give an invocation before town meeting. And when challenged in the courts, those jurisdictions have won in both the third circuit and the DC circuit, which upheld the exclusions from constitutional attack. And to me, that's an extremely disturbing development because I think the anti-discrimination principle that I've been talking about is the key lynchpin to the only silver lining that I can find in the courts recent pro-religion jurisprudence. If the government can promote religion, but it could also exclude non-religion in the hard sense of there is no God, then I think we're really in trouble. So what I want to do with the rest of this talk then is first I want to describe the growing phenomenon of secularists asking to give and then giving invocations. How did it come about? What are secular invocations? What do they typically look like? Where have they occurred? What the reactions have been and why I applaud the trend? Second, I want to talk about jurisdictions that have banned atheists from giving invocations and the cases that have reviewed those bans. And third, I want to explain why I think the bans are unconstitutional and why I think the third circuit and DC circuits have gone wrong here. So the phenomenon of secular invocations. And we should start I think with a 1983 case of March versus Chambers, which Professor Green was talking about. And that's where the Supreme Court upheld the practice of legislative prayer in a in a 6-3 opinion written by Chief Justice Berger. It's one of the most poorly reasoned opinions in religious, religion clause, if not constitutional history. I think in my first book, Holy Holy Blues, I said that probably Justice Berger wrote the opinion in five minutes sitting on a can. But I actually revised that assessment in my most recent book because I just don't think it took them that long. Berger ignored all of the harms of legislative prayer that were articulated by the dissent. And the dissent, by the way, candidly also said very remarkably that if you gave an exam to law students and you said legislative prayer, is it how does that fit under our precedent? All of them would say it's unconstitutional clearly. But Berger upheld the Nebraska Legislature's practice of legislative prayer simply by observing really that historically the House and Senate provided for chaplains three days before the establishment clause was ratified. There's a little bit more to that as Professor Green explained, but not that much more really. And then so that was March. And the court didn't take up the issue again until about six years ago when it decided town of Greece, which involved in the town of Greece versus Galway, which involved invocations before the town board in Greece, which is a little town outside of Rochester, which were expressly and consistently Christian so much so that the second circuit just struck it down. The Supreme Court upheld the practice of the town of Greece five to four. And in doing so, it rejected two purported distinctions between Marsh and town of Greece. First distinction was that the fact that this was a town meeting rather than a legislative body rendered the prayers coercive and that's unconstitutional. If I'm going before the board and I want a zoning request and I'm an atheist and everybody starts saying a prayer to Jesus before the before the meeting starts, I'm going to feel pressured into participating in that prayer. And the second distinction was that these prayers in Greece were completely sectarian, unlike the ones in Marsh, which actually were less sectarian or not sectarian because Jewish legislators were in Nebraska had complained about them. And so the prayer had changed their practice. I agree, by the way, that this was coercive. I don't agree that the sectarian nature of the prayer should matter because only because there's just no such thing as a non sectarian prayer. Occasionally, the Supreme Court talks about a non sectarian prayer as an eight. I don't know even what that means. It's complete nonsense to me that there could be a sectarian, a non sectarian prayer. And just as the leader to his credit takes that position in his separate opinion in Greece. But the key to Justice Kennedy's opinion in town of Greece for my purposes is the line where he says in response to an argument that the town should not have only invited Christians to give the indications, he says, so long as the town maintains a policy of non discrimination, the Constitution does not require it to search beyond its borders for non Christian prayer givers in an effort to achieve religious balancing. So in other words, the town must maintain a policy of non discrimination. Wow. Now, Justice Kennedy didn't say what that meant. He didn't say where it came from, but he did say it. And it does seem to me best understood as being rooted in the constitutional principles I already mentioned, because those are the obvious ones. And he's certainly talking about the Constitution. So I don't know what else he would be talking about in this particular with this particular language. In any event, religious minorities and especially atheists and secularists with a great aid of separationist public interest groups like Americans United for separation of church and state, Americans, the American Humanist Association and and also this little outfit out of Madison, the freedom from religion foundation jumped all over this line. And basically started these programs to help atheists and secularists give invocations before town bodies. Americans United had what they called Operation Inclusion.  And then there was the Central Florida Free Thought Community, which did maybe more than anybody. This little group in Central Florida led by David Williamson, which basically made a campaign to give atheist secularist invocations all over Central Florida, which is not a particularly liberal region. So in the years since town of Greece, as a result of this work, something like 100, somewhere between 100 and 200 secular invocations have been given all over the country, many in conservative Central Florida and other conservative counties. If you're interested, you could look at the CFFC website because it catalogs very helpfully many of where these invocations came from with links to videos and to the transcript of the invocations, very easy to find online.  What is it like? And the paper I'm writing has some excerpts. There's a wide range of them, hard to kind of categorize them. There's some things, some themes that that emerge that I identify that are interesting. The most interesting one is that many of these invocations specifically say, don't bow your head like like in a typical Christian prayer, look around at your fellow humans because that's what matters. Lots of them do that. It's very interesting. There's an emphasis on science and emphasis on reason. Another theme is the emphasis on equality and inclusion. And finally, a theme that you see pop up in many of these invocations is the interrelationship among people and people with the natural world. I'll just, I'll read one very brief excerpt from one of the invocations, one given by Representative Solomon and before the Arizona House of Representatives in 2019. She said, take a moment to reflect on the wonders of the universe, bask in the awe and magnificence of the diversity of nature. Look upon the soaring mountains, the vast seas, the clouds set at azure sat skies, ponder how living things became so immensely diverse on our life-giving planet, how integrated and interdependent is all life meshed on our wondrous earth. Can we truly fathom the depth of the intricacies required to produce and sustain living beings such as animals, plants, microbes, the engines that support the survival of such diverse life forms on an incredibly insignificant planet, in an insignificant galaxy, in an insignificant corner of an unimaginably immense universe that may possibly be a single speck floating in a sea of universes. It just, it warms my heart. Okay, so what are the benefits of secular invocations? I think that in all the ways that religious minorities and atheists can partake in public life, the invocation is the one that best promotes the interest and pluralism that I mentioned earlier. Because an invocation is sort of like a mini lecture, a two to three minute lecture about the belief system or non-belief system. There's a captive audience usually, I mean somebody can leave and in fact many times they do, I'll mention that in a minute, but usually people stay. The citizens who are at the meetings are by definition engaged because they're there. They're the people in the town who care about what's going on. And the invocation allows the religious or non-religious belief system to give an in-person example.  So I think that a lot is lost when any kind of invocation is off the table. Next question might be what are, what have the reactions been to these invocations? Most of them have gone without incident actually. I've been to one, I went to see Linda Stevens, who was one of the plaintiffs in town of Greece versus Galloway, give an atheist invocation before the town board that she had sued and brought to the Supreme Court. I couldn't have missed that. So I went to Rochester just to see this invocation and it was lovely. And in fact, everybody there was very respectful. There was no hullabaloo whatsoever. There was a guy who was sitting right next to me who took off his hat because he thought it was going to be a prayer. And then when it became clear that she wasn't really praying maybe, he put hers hat back on. But that's, it was a Red Sox hat, so I didn't really care. But there are some other, there are some other jurisdictions where things did not go so well. So at one, at one, the one, in fact, I just talked about a fellow representative in Arizona ridiculed the invocation by saying, I would like to introduce my guest now, God. God is in the gallery as he is everywhere. He's the one who created this tiny speck that you keep talking about. And another one, a commissioner in Florida gave a counter-invocation calling upon the Lord and Jesus Christ. And another one, people got up and left the room. And that has happened more than once, in fact. So I don't have time to catalog all these kind of sad responses, but they have happened quite a bit. And of course, as I've mentioned already, there are three jurisdictions that have banned invocations from those who do not believe in a higher power. Those jurisdictions are Brevard or Brevard County, Florida, the Pennsylvania House of Representatives and the U.S. House of Representatives. And those cases have all been litigated by the public interest groups that I've mentioned before. The government has won two out of three. The one they lost was the one from Brevard County, Williamson versus Brevard County. The Eleventh Circuit struck down the county's exclusionary policy. And the reason is, unfortunately, it was such a bad policy that the law that came out of that case doesn't really address the question of could the county have just excluded atheists. Because it turned out that the commissioners were deposed and they said things like, oh, I wouldn't allow a Hindu either or a Native American, no. So it's clear that they would only really want a monotheist. The other two cases, Barker versus Conroy from the D.C. Circuit and Fields versus Speaker of Pennsylvania House of Representatives were two cases which upheld the policies of the United States House and the Pennsylvania House with roughly the same reasoning. Although the Third Circuit opinion was more thorough and detailed and engaged, and in that case, there was also a dissent. The D.C. Circuit opinion was written by Judge Tatum, who I clerked for and who I'm not very happy with right now. But anyways, if I wanted this, if I needed to summarize the rationale of those opinions, it would be something like this. The touchstone for deciding whether something's constitutional in the legislative prayer context is historical practice. The historical practice was that legislative sessions started with a prayer to a higher being for divine guidance. And so if a current government body wants to limit its invocations in that way, they can do so. And that's basically it. I think the D.C. Circuit and Third Circuit got this wrong. And I'll make a few preliminary observations, and then I'll tell you what my reasoning is. I think I have about five minutes left. If I'm wrong, somebody can tell me maybe in the chat or something. Preliminary observations. I find, first of all, is I actually find the dot, okay, thank you. I find the doctrinal part of the question kind of the least interesting of all the parts, but I still want to talk about it anyways. Second is I'm not saying here that the Third Circuit and D.C. Circuit's position are plainly wrong. I don't think you can say that because Marsh and Grease are so minimalist, and I don't even know really what they're saying. So there's no clear answer about how to apply them. Third, my own view about Marsh, though, is that it should be read as narrowly as possible. It's so poorly reasoned and it's conclusory that I would really argue that court should not extend it beyond its core holding. And its core holding is simply that a legislature does not violate the establishment clause when it starts a session with a prayer. That's all it held. So I don't think the resolution of related or subsidiary questions really have to replicate the original failures of Marsh by unreflectively extending them, the extending the core holding of that case. So those are just preliminary views. As to the substantive analysis, the key is figuring out what to do with the non-discrimination language of Kennedy. Is that just part of the historical analysis itself that doesn't add anything substantive? Or is it independent and in addition to the historical analysis? And if it's the latter, what does it mean? What we know about the history, I think, and I'm no historian by any means, absolutely not, and I'm taking this from an 1853 Senate report that was cited in Grease and also there was an expert report that was submitted in the fields. I think the fact is probably nobody gave secular indications or Buddhist invocations or Hindu invocations or Jewish ones really throughout history, but there was also probably no formal exclusion either. In other words, there was de facto discrimination, but not formal de jure discrimination. So if the Grease non-discrimination language is kind of baked into the historical analysis, in other words, if it's saying that the government today has to follow the history and the history itself was non-discriminatory, it can only be referring to formal exclusion, I think. But nothing suggests that historically there was a formal exclusion of atheists. So a current formal exclusionary policy would not fit into the historical practice, it would be unconstitutional, and that in fact is what the dissent in the Third Circuit case's position was. I don't actually think that Kennedy meant that. I don't think that's the best reading of what he's saying. I think what the best reading is that non-discrimination is an additional and independent requirement that comes from these two lines of cases about viewpoint discrimination and religion discrimination, which should apply here. I think everyone would agree that a government body couldn't say no Jews could give the invocation or no Buddhists could give the invocation. I think it would be hard-pressed to find somebody who said that's okay. On the other hand, probably most people would say that a government has not discriminated if it says we're going to exclude people who are going to talk about their favorite sports team or broccoli preparation method. Right? So the question might be are secular invocations more like the former or the latter? And I think they're much more like the former. And for the reason I gave earlier, which is that functionally, atheism functions as a religion for purposes of the religion clause. And so I think the best reading by no means the only reading of March in the time of Greece, but I think the best reading and the reading that best preserves the pluralism that is the really the the only potential benefit from the Supreme Court's line of cases allowing religion to the public square would be to hold the bits unconstitutional to exclude atheists from once in a while giving an invocation before a public body. Thank you. Thank you, Jay. That was terrific. Have you ever done any theater? I haven't but I but you know what this is? No. It's it's it's the producer's thing stretch stretch it out. Apparently Marianne case who is following you has technical problems. I don't think she is with us at the moment. She's we've she's informed us earlier that some construction in her building has been intermittently interrupting her internet and she seems to have disappeared for the moment. Let me see whether if there are questions here for you and there are. Professor Wexler, can you add the the Religious Freedom Restoration Act to your thoughts? That is, should minorities try to use the RFRA to support, for example, their Marxist religion, etc. It's from John Rogosta. And so then and we're not talking in the invocation context. I take it could could well. So the Religious Freedom Restoration Act now I have to what its definition of religion is so so so as a statute and we have to look and find out what it what religion means under that statute for purposes of the RFRA. I don't recall what it is if there is I don't think there is one could a could a so if I don't know I don't know I mean I have trying to think what would an atheist religious practice be because that's that the question and the question would be could a law if a law could a law can we think of a law that would substantially burden the practice of atheism is the practice of atheism include being able to give an invocation so let's say it is you know let's say there's an atheist group that says it is part of our core philosophy that we must speak before before public bodies would a rule excluding them by I'll think about that for the next 35 minutes because I think the case is back. So I see Professor Case is virtually with us. Welcome Professor Case. Marianne Case is the Arnold I. Shore Professor of Law at the University of Chicago Law School. She has taught at Columbia Law School at Princeton University at the American Academy in Berlin at New York University School of Law and the Virginia School of Law. She is better qualified than anybody I know to talk about to do a comparative analysis of law schools. She is the author of dozens of articles and book chapters about religious freedom, gender equality, feminism and other topics. Her work has appeared in the Yale Law Journal in the Stanford Law Review, the California Law Review, the Supreme Court View, other leading and other leading journals. She had received her BA from Yale and her JD from Harvard and she's been having a technologically white knuckled day. I know that so we're all pulling for you and your internet Professor Case take it away. Thank you so much and as I have explained I've had more trouble with my internet today than I have the sum total of all other times from the beginning of lockdown to the present and once you hear my talk you will understand why some people might say it is the judgment of God on what it is I am planning to say that is causing my internet difficulties. In addition I should disclose you a couple of things. First this is absolutely my very first PowerPoint venture and I'm hopeful that you know I would have been technologically nervous even if my internet had been functioning normally and then additionally I wish I should say as you'll see from my talk I am ranging you know throughout the centuries and the religious traditions and I am making a lot of claims that I am much less sure of than I would ordinarily like to be before I put them into print and I welcome all intervention by way of correction or additional information or bibliographic suggestions. The top the central topic of my presentation is mentioned in the introductory remarks for the symposium. It is the so called Bladensburg Cross or Bladensburg Peace Cross that was the subject of United States Supreme Court opinion a couple of years ago and it is a cross erected in memory of 49 particular soldiers and other military who served in the US forces in World War I and came from the general vicinity of Bladensburg Maryland which is where the cross is established. Many people who follow the law of the establishment clause were taking bets whether this case would be the subject of a whole new doctrinal approach. I was one of the ones who turned out to be right that as so often happens in establishment clause cases the court cannot agree on anything like a generalizable test like for example the Smith test that Justice Scalia put in place for pre-exercise cases and which may die the death this term before the court. Instead there's a welter of opinions and no general thesis that I at least can discern. I'm not going to be talking so much about the legal doctrinal aspects of the case. I'm going to focus on what Justice Alito for the majority did find as a condition of upholding the case which is that this cross is the symbol which has taken on a secular meaning. I'm less interested in whether Justice Alito or the court found this to be so. What I'm fascinated by is that religious liberty organizations including First Freedoms which represented the named defendant in the case below and took it up to the Supreme Court that is the American Legion these religious organizations in their amicus briefs and in their you know principal brief and in their argument were also taking the position that this cross is a secular symbol and that struck me as a very bizarre thing for them to be arguing. So what the title of my talk is who conquers with this sign the significance of the secularization of the Bladensburg Cross and as I said in my summary my own view is that either the devout Christian proponents of the Bladensburg Cross are at heart dominionists who are hoping to unite church and state in a Christian theocracy or they should see it as a puric victory if the cross is preserved at the price of denying its religious meaning. You see in my introductory slide that question who conquers with this sign not as a question but as a statement written in the heavens in Huxigno Vinkes with this sign you will conquer of which the history of which I'll talk about more later but I was particularly intrigued to look at this from the perspective of the religious so I was particularly eager to do this at Roger Williams Law School because famously while Jefferson is thought principally to be concerned if not exclusively concerned with the benefits of separation of church and state for the state and the dangers of a lack of separation for the state Roger Williams that I'm oversimplifying wildly was by contrast interested in the dangers to the church of a lack of separation and I've put up opposite an image of what I hope can be seen as the garden that Roger Williams describes of as the church walled off from the wilderness of the world the famous lines from Roger Williams the bloody tenant that both encapsulate his view and in particular his statement that they both the old Jewish in the in the Old Testament and the Christians in the New Testament separate from the world and when a gap was opened in the hedge or wall of separation between the garden of the church and the wilderness of the world God has broken down the wall made his garden a wilderness and that if it ever will please him to restore his garden in paradise again it must have necessity be walled in particularly under to himself from the world this is a separation of holy from unholy so what I want to explore is the ways in which the Bladensburg cross the cross through long history and the arguments in its favor by the religious proponents of its remaining that is to say not the city of Bladensburg but those who from a specifically religious perspective defended it how this is an exemplification of exactly the concerns Roger Williams raised so I am putting myself so I have done a version of this talk directly in conversations sponsored by the federal society with people who file briefs and and represented parties before the court and I'm putting myself I'm making a case to them from their own Christian perspective I in a sense I'm defining myself use of be them as Hasan not Satan the devil but the adversary and what I have said to them is that they are betraying Christ in saying that this is a secular symbol I have invited them to consider a version of the story of the denial of Peter that is found in the three synoptic gospels and and for those of you not up on your Bible stories the story goes as follows Jesus had his disciples gathered around him and predicted he would shortly be arrested and tried and put to death and that all of them would abandon him and Peter steps up and says no no I'm I would never abandon you just never and on the left hand side is a sketch from the catacombs from the fourth century of Jesus is saying to Peter you think you're not going to betray me but I'm here to tell you before the cock crows you will betray me three times and so Jesus is in fact arrested and almost all the other disciples in fact flee but Peter's thinking I am going to stick with him goes further than any of the others he goes into the courtyard of the high priest's house and that's the manuscript illustration on the right hand side and he sees Jesus being abused and being ready for trial and he stands around warming his hands by the fire and various people like a servant of the high priest says say to him you know didn't I see you with this guy aren't you one of his disciples and Peter as Jesus predicted said no no no I'm not one of his disciples never saw I've never heard of him nothing to do with him and then of course the cock crows so my argument to the religious defenders of the Bladensburg Cross as a secular symbol is that they are essentially making Peter's mistake they are thinking that they are going to go further than anyone else in defense of Jesus and what he stands for but what they end up doing is betraying him and I want to put this so I mentioned that that this would be a puric victory if the way they get the cross to be preserved is by saying that it is secular a purist of course is a Roman general who famously said another such victory and we are lost because of the heavy casualties I want to turn your attention to another Roman general and emperor who was the originary of the the question or the statement that I put up in this sign you will conquer and that is of course the emperor Constantine Constantine ended up as a Christian shortly before he died he made Christianity tolerated under the Roman Empire through the edict of Milan but before that before he became a Christian before Christianity was tolerated and 10 years before Christianity became the official religion of the Roman Empire Constantine was in a purely secular war with one of his political rivals Maxentius and just before the battle the infamous so-called battle of the Milvian bridge Constantine who had previously flirted with all kinds of religions he'd been a devotee of soul and victor the invincible son decided you know he wanted victory and claims and told the church father Eusebius according to Eusebius personally told Eusebius late in life that this happened to him the night before the battle he had a vision not only he but his whole army had a vision and the vision was of a sign in the heavens what I've shown you here is an example of this from the Vatican from the Raphael rooms in the Vatican and it is the sign of the cross you see before Eusebius it was not the cross it was the so-called hero the first letters in the word Christ also to the C in the H the first letter is also in the word Kronos but by the Middle Ages this had been very clearly seen simply as the cross you see on this image there's Constantine he sees the vision and it says in Greek not in Latin in tautide Nica in this sign you will be victorious you know Nica is in Nike the shoe company for victory and here's another this is the the title page I took from Church of Santa Croce in Florence and the next day the Battle of the Milvian Bridge and you'll see the angels are assisting Constantine and there's Constantine who has put the cross on the standards of his legions and combined it with the eagle of the Roman Empire and again so grateful was Constantine that he immediately made Christianity a tolerated religion but it went within 10 years from being tolerated to being the official religion of the Roman Empire and Constantine also started meddling in religious matters he convened the Council of Nicea which gave us the still used Nicene Creed setting forth Christian doctrine and commingling of church and state in this way also led to another thing that the framers were worried about which is the church acquiring or seeking to acquire material goods the final panel in this Raphael rooms about Constantine in the Vatican is of the legend of the so-called donation of Constantine where Constantine in gratitude gives to the church the land's substantial territory in Italy that subsequently became the Vatican state and then Constantine united in a sense the Christian religion with the Roman state by for example putting on his coins this standard so this is again the standard of the Roman religion with the hero rather than the cross on top but again if people of Christian faith are looking at this they should I hope be put in mind of the scriptural passage where Jesus is asked about taxpaying and asks for a coin and says whose name is on this and whose inscription and when he gets the answer Caesar says we'll end around to Caesar the things that are Caesar's and unto God the things that are God's what we are seeing here is a conflation of the things that are Caesar's and the things that are God's depending on which side of this coin you're looking at and I mentioned this in the context of the fact that infamously in God we trust the motto of the United States prominently appears on the money of the United States so you know with that as a background with Constantine and his Roman legions I come back to the Bladensburg cross case which is captioned American humanists versus American Legion and I want to say a lot of discussion in the briefing in the lower court in the supreme court had to do with the cross as a quintessentially Christian religious symbol for the death and resurrection of the Christ with the notion being that was the reason it was on a gravestone and that the Christmas holiday may have become comfortable and familiar as Justice Brennan says in the Christian holiday as the Puritans would have told you has always been commingled in its celebration with pagan rites the Easter holiday and before that the good Friday holiday marking Christ's death on the cross have not had at least when it when references to cross and resurrection the same secular traction I want to basically concede that this cross is not now nor has it ever been principally a symbol of Christ's death and resurrection um it's a commingling of secular of earthly military power and earthly military standards with uh the Christian religion and has been from the get-go so I've now uh you know it's hard to see from the photos what's on this but um it's the um seal of the American Legion appears in the middle of the cross the virtues mentioned are valid valor endurance courage and devotion and then there are passages from word of wilson and from others about how these soldiers died for uh the great cause of preserving liberty so I I do think that the cross is about sacrifice uh but it's that the soldiers are being analogized to Christ dying sacrificially for a good cause not narrowly is that their own uh resurrection is being prefigured uh and it's partly because the cross was not a Christian symbol before uh the fourth century it is not closely associated with uh resurrection until after that um and um yeah even the puritan graveyards did not principally feature uh the cross um why the cross is associated with world war one graveyards and this is a world war one memorial uh the supreme court and others make much of um and it's this poem written by a Canadian killed in the war in Flandersfield the poppies blow between the crosses row on row again this is about uh secular sacrifice poppy we will not sleep though poppies grow in Flandersfield so we're passing the torch on to you on the right I've got uh a photograph that appears in US reports of the current state of the field with the previously wooden crosses uh replaced by marble crosses and for the Jewish soldiers who wanted it a star of David I think it's interesting and I'll come back to this later uh that the rest of the allies who also focus on this uh poem uh focus on the poppies and not the cross on the left hand side I've got a tweet from the belgian air force on the 100th uh on an anniversary uh of the of world war one and they're focusing on the poppy okay um the cross though has been part of uh American military and political history uh for a long time I'm focusing here on the Confederacy because you saw that there were Jewish stars of David and one of the major points of dispute between the majority and the dissent in the supreme court and between the various people briefing is whether Jewish soldiers are included in uh the uh the cross symbolism um this is not a new problem and uh it was in fact a confederate problem uh what I have here is a slide of the proposed and final uh confederate flags and a discussion of them uh by uh William Porto Miles who was the chair of the Confederacy's community on the flag in the seal and he originally wanted something like the cross on the left uh that's uh a South Carolina secessionist cross he wanted to remove the South Carolina Palmetto in the moon and simply have a Latin cross as the crap the flag of the Confederacy he got a bunch of um critical comments from uh southern Jews I quote uh Charles Moise who describes himself as a southerner of the Jewish persuasion he says please don't make the symbol of a particular religion uh the symbol of the nation and uh Miles uh exceeds and what he says is I'm going to make it diagonal uh because then it doesn't stand out so conspicuously that it is a cross now of course for him it still was a cross but he says it's more heraldic than ecclesiastical it's being the sultry of heraldry significant strength uh from the latin salto to leap actually it's from the latin for stirrups and uh people who mocked the original uh southern battle flag said uh well it really looks like a pair of suspenders not a cross but I do want to highlight that the idea that it remains a cross even up weekly uh was clear at the time and uh I believe remains clear to many of those who deplore its decreasing use in the U.S. Among those are people who objected when their southern state flags which previously incorporated some version of the Confederate flag were reformed to eliminate that notion most recent example of this is from Mississippi which this November 3rd will not only be voting on the president but will also be voting on its new flag on the left you see the most recent flag of Mississippi prior flags back to the civil war were like it in also featuring the confederate uh I'll call it again assault here or cross it's also the st. Andrews cross of Scotland and many people have said you know that this uh reflects the scotch irish uh heritage of many uh in the south I'm not sure the history supports that but uh current views certainly do um we've got on the right hand side the proposed new flag uh it's I think significant for the purposes of the surprising him to note that the statute that said we're going to get rid of the confederate battle flag and its disguised class said that the only thing that the new flag had to have on it were the words in God we trust so you know if you're focusing on it from the perspective of diversity and inclusion you can say well you know now that Mississippi is not um any longer explicitly excluding uh the descendants of slaves uh it's got to be exclusive of someone so it's going to be exclusive of atheists and put in God we trust up but I do think that you know uh it's a small step from the um from the cross on the old flag to and God we trust on the new one which brings me back to Maryland home of the Bladensburg Cross um and uh Bladensburg is from a portion Maryland of course was part of the union officially during civil war but many Marylanders fought for the Confederacy and among those were people concentrated around the town of Bladensburg uh and uh the flags come into this right a lot of uh southern state flags and confederate flags had crosses on them uh the flag on the left is the flag under which the uh Marylanders who fought for the Confederacy fought it's the so-called crossland flag it is part of the coat of arms of the founder of uh Maryland but before the civil war the other part of his coat of arms the thing that's quartered with the coat of arms on the current uh uh Maryland flag was the flag the the black and uh yellow uh as far as I can tell non-religious symbolism um after the war only after the war the cross was incorporated in the flag of Maryland because the ideas were going to take uh the the flag under which the uh state fought for the union and quarter it with the flag uh that the confederate Marylanders uh fought so as to exemplify uh union after after the war uh and Maryland also uh incorporated as its motto Maryland's historical motto uh was uh facti maschi paroli femmini uh manly uh deeds and womanly words uh but they have substituted for it recently uh fairly uh post civil war uh through the you know 20th century uh gradually uh a quote from the psalms with favor without compass us as with a shield scuto bon e volontatis tu e cronasti nos bon e volontatis is um you'll remember from christmas persons of goodwill uh i have to say you know my catholic upbringing um made me debate exactly the right translation from the latin vulgate of this persons of goodwill is one way to translate it um persons on whom god's favor rests is another and um this is the translation uh that seems to be uh the one that the Marylanders are focusing on and i come back to uh constantine and the battle of the milvian bridge now it's one thing for um the crusaders for example to take the cross as their symbol or the various nightly orders that defendage ruslan to take the cross as their symbol because the cross was literally what they were fighting for uh it's something importantly different i think for someone like constantine uh or someone like a christian nationalist uh to take the cross as a symbol in um a military or political context because it's saying that god is on our side in a secular battle uh with another person who uh either has his own god or is also praying to your god we're not fighting for god you are expecting god to fight for you um and this brings me again back to uh the bladensburg cross and the inscriptions on it which have to do with the commingling of godly protection and the sign up in which won congress and military valour um again i said it was a world war one symbol what my next screen shows is all of the medals from world war one of all of the relevant countries um on the left is the united states distinguished service medal again cross in the back eagle and the foreground constantine would easily recognize this it's like the standards of his legions but the eagle is superimposed on the cross and the inscription is for valour not for any religious virtue um next to it is the iron cross of the german empire i said this is my first powerpoint when i'm ordinarily accustomed to doing is to say i do old-fashioned visual aids in particular i dress up when i talk and you may have noticed you may have been startled to notice uh that i am in fact dressed up what i am uh wearing is uh an iron cross and if you saw it before you might think is she wearing it because she's a christian if you don't know that it's a german military symbol no i'm not uh you might if you didn't know me uh say she wearing because she's a neo nazi uh or a biker because the neo nazis and the bikers have also adopted the iron cross uh as a symbol no this happens to be one of my grandfather's two iron crosses uh which he earned fighting for the germans in world war one and it's one of four cross decorations he earned when doing this the iron cross was also owned by uh among two notable recipients adolf hillar and carlo wellan my uh university of chicago predecessor although an american he sympathized with the germans and performed enough services for them before the americans entered the war as to be awarded the iron cross um it wasn't interestingly until world war one that as far as i can tell the united states put the cross on any of its military decorations previously the decorations were things like stars i'm having uh folks from the institute of heraldry and and the pritzker uh military museum confirm this for me but what i what i wanted to point out is that you know everybody on both sides um shows the cross uh the rest were more or less christian uh nations you've got the victoria cross uh from the uk at the lower right and then the austro-hungarian cross um and the belgian and the french quadigay each of them combining as constantine would uh readily recognize uh military uh with religious symbolism and the idea is we wish to conquer uh but not conquer death as christ did but conquer a secular enemy on the field of battle and sacrifice ourselves perhaps as christ would um in that uh noble cause so uh yeah some uh us military uh symbols have specifically invoked uh the crusaders uh you know the uh mickey whitestone and the um military religious freedom organization got this one stopped uh but this is you know as i said the crusaders are something very different not the us military crusaders the original crusaders they were fighting for the cross and for christ they were not uh commingling church and state breaking down uh that wall that to roger williams was so uh important um so i want to come back to uh the poem that uh is used to uh validate the use of the cross as a world war one uh military symbol and points out that uh there are two things highlighted in the poem the crosses which in various secular instantiations of the poem have been changed to headstones and the poppies the united states has interestingly chosen the cross and defended and now the supreme court has validated uh the latin cross as the specific symbol of the world war one dead the rest of the uh combatants like the belgians have chosen the poppy uh if you have ever spent time in the uk around uh november 11th the armistice day you will see that everybody from the queen on down wears the poppy as an emblem um to commemorate uh world war one and precisely from this same poem uh that from which we get the cross they get the poppy so here's my uh proposal uh now there was um at the time uh this case was in the lower court uh the american humanists were proposing well if you don't want to take it down then cut off the arms and make it an obelisk do something else uh other than make it a cross so my question is why not the bladensburg poppy uh rather than the bladensburg cross and i commissioned a uh a talented architect friend of mine to actually uh see if this could be uh realized as a conceptualization what you have here is her uh illustration and she pointed out to me that there actually is already a firm that makes solar panels that are in the shape of a flower and can make them uh you know two specifications so you know were it not that the supreme court has already uh blessed the uh bladensburg cross uh i would propose that the thing to do is for us to join the rest of our world war one allies and embrace the uh bladensburg poppy uh and uh that uh christians above all uh more than um specularists or lawyers or supreme court justices need to answer better than they have hitherto why not the bladensburg poppy instead of the bladensburg cross i'll stop there thank you professor case that was terrific um and um we're all relieved because i know you are that your internet did not fail uh during that terrific talk um we have just about three minutes before the break if anybody has if anybody is a fast typer okay so let me take these three minutes if no one was already put in a yes take it away first of all now that i'm uh more full screen i'm also wearing poppies uh embroidered on my jacket this is this is low-tech uh old-fashioned visual aids and i will point out that if coming back to roger williams and the garden and the wilderness okay poppies are the wilderness poppies are a wild flower so to embrace the cross as a secular symbol is to tear down the wall whereas to embrace the poppy is to allow the holy to remain holy rather than to co-opt the holy for unholy purposes and i don't mean by unholy necessarily wicked but not holy as roger williams would say right well that explains a terrific outfit and old-fashioned visual aids i don't see a question in the chat i know people get zoom fatigue so um we will take uh instead of a 15 minute break we will we will take a a um uh a decadent 17 minute break and we will resume at three o'clock eastern standard time with our last speaker um dean chimarensky followed by a panel discussion uh with dean chimarensky and professors wexler and case see everybody in 17 minutes on the hour hi everybody we are waiting for dean chimarensky and if professors wexler and case are available if they could rejoin us we will pose whatever questions we have from the audience to them while we're waiting for um dean chimarensky who we're frantically trying to reach at this very moment um j i see you're there mary and there are you so i think we have some questions um thank you for um appearing instantly on request and uh i've got a for j uh for professor wexler you mentioned that muslim religious school vouchers made legislators rethink their position on religious vouchers besides the positive pluralistic impacts of minority religious and non-religious participation will this public participation reveal a potential christian bias running through recent first amendment jurisprudence and precipitate a similar retraction of religion from public life in general this question is from jonathan stark um if i understand the question uh i i i think the answer is yes and it's not and and the the group that's really pushing that is the satanic temple uh because um opposition to atheists and and muslims is certainly uh certainly out there but but you should see how people react when the satanists come to town so um for example uh so so so and in fact the satanist and i'm specifically talking about this group the satanic temple not other forms of satanism but this group is uh they they purposefully asked to participate in public life alongside christians for example by putting up their nine foot baphomet monument on uh in arkansas and and and giving invocations before boards and they know that when the when the when the public realizes that they're that the that the satanists are going to give an invocation for example uh it makes them very very worried and sometimes they shut down the entire whatever the program is entirely so this happened in in phoenix the phoenix had had a policy to start their city council meetings off of the prayer um so the satanic temple asking of a prayer the the city council first said yeah um because they had to and then when it became clear to everybody that there were in fact satanists that were going to give a prayer the city council the the the city of phoenix won bananas and they had a they had a like three hour public meeting uh which you can find online which was basically where a christian nation over and over and over people taking up dollar bills and saying it says in god we trust not christ uh satan and so eventually what happened is they just decided to switch to a moment of silence instead of uh instead of a prayer and so and things like that have happened um excuse me sorry jam just going to interrupt you one second to let uh roger williams it know that uh professor uh chairman insky is typing into the question and answer function that he is here can we hear him so roger williams it uh see what you can do professor wexler uh sorry keep keep uh yeah so the i mean the the best my favorite example of this phenomenon is um when a county in florida started handing out bibles to their public school students the um they didn't hand them out they kind of had them on a table people could take them or not and the satanic temple made what's called the satanic book of the satanic coloring book and oh the big book of satanic activities and it's just like the seven page booklet with like a word search uh for words like justice and freedom and and a maze to find uh satan and stuff and uh it and in the town of florida the town in florida the county just said we're not going to let any religious materials be distributed anymore rather than have that go out so so yes it happens right thank you thanks so um uh dean chamarinsky had joined us uh before i introduce him um let me just say a couple of housekeeping things and uh first is a reminder to everyone that if you have questions uh for our afternoon presenters uh uh professors wexler professor case dean chamarinsky type them into the question and answer function and uh i'll you know time permitting i will uh um i'll read all of them that i can in the panel discussion uh following dean chamarinsky's um talk um i do want to uh just publicly thank um roger williams it and joe auger and roger williams um law school law events chelsea horn and jane uh govnik for all of their work on this symposium uh um it's been it's been a lot of work in the zoom world and um and thank you so so much um i do want everybody to know that um all of our um speakers today um that this that this is a this project uh is a two step project a two prong project um and the first prong is this uh you know this symposium live that you've been watching today uh the second part is that all of um the contributors to this symposium um are contributing um major original articles to a special symposium issue of the roger williams university law review um which will publish um their papers in this in this special um issue thanks again to the freedom from religion foundation for a very generous grant which will allow us among other things um to uh print uh especially uh large uh run of this symposium issue and to distribute um the issue to uh to federal judges and law professors throughout the nation um with that said let me introduce um erwin chamarinsky um his visage will be familiar to many of you because he is a recognized public intellectual um in addition to a teacher and scholar he is the dean and the jesse chopper distinguished professor of law at the university of california berkeley school of law uh he was previously the founding dean and distinguished professor at university of chicago revine school of law uh where we also held a joint appointment with the political science department prior to that he taught at duke and ucla and southern cal and depot law schools he is the author uh or editor of 11 books and this is not hyperbole hundreds of professional and popular articles um his most recent book is we the people a progressive reading of the constitution for the 21st century that is assuming he hasn't written one over lunchtime today and uh or it's it's just he hasn't because it's just coming up on lunchtime in berkeley california um as i've mentioned he's a public intellectual uh he was named one of the top 20 legal thinkers in america uh by legal affairs um he's twice been named uh the most influential person of legal education by national jurist uh he received his bachelor's degree from northwestern and his law degree from harvard university um dean chamerinsky or is yours thank you so much for the kind introduction thank you for letting me part of this terrific symposium i wish we could have all been together in person and i apologize for the technical difficulties i was listening to you and hearing professor wexler and frantically thinking how do i get on as a participant so thanks for your patience with regard to that the symposium asks the question is the united states a christian nation the answer must be a resounding no the country is not now never has been and hopefully never will be a christian nation as a matter of law in 1791 in the treaty of triply the united states declared and i quote the government of the united states is not in any sense founded on the christian religion to be sure there had been proposals in american history to amend the constitution to make it officially a christian country there was a proposal introduced in 1864 by the national reform association they would have amended the constitution to say quote humbly acknowledging almighty god is the source of all authority and power in civil government the lord jesus christ is the ruler among nations and has revealed well is the supreme law of the land in order to constitute a christian government it got nowhere in congress in 1950 there was a proposed amendment with a said that is to recognize the authority of the law of jesus christ savior and ruler of nations through whom we are bestowed the blessings of liberty didn't get any we're in congress than either so i think that these proposals failed miserably tells us something that even at those difficult times there wasn't enough support to get it through a congressional committee let alone through congress and yet there continues to be this myth that we hear all the time that this is a christian nation the phrasing part comes from justice david brewer in holy trinity versus the united states we wrote quote america is a christian nation now there are commentators who say this today james dobson from focus on the family says that the united states was established as a christian nation by christian people now when i say the united states is not a christian nation i'm saying it is a matter of law is a matter of social reality and social practice there are over 200 million christians in the united states i am jewish and i'm often acutely aware that we live in a christian country christmas despite what some say certainly feels omnipresent to one who doesn't celebrate the holiday but my view is that as a matter of law the constitution was meant to create and should be interpreters creating a secular government i am very embarrassed to say this after the kind introduction but i do have a new book that came out september first and it's titled the religion clauses it's co-authored by howard gillman published by oxford university press that was published september first of 2020 and it is very much relevant to what this symposium is about in it we defend both with regard to the establishment clause and the free exercise clause the importance of separation of church and state i want to make three points today and they certainly parallel what howard gillman i argue in our book first historically the united states was never meant to be a christian nation second as a matter of constitutional interpretation we should interpret the establishment clause as creating separation of church and state and third i want to fact what i fear for the future especially with the newly constituted supreme court so let me take each of these points briefly in turn first in terms of history i know others have discussed this those who frame the constitution were very much aware of the religious strife that existed in england and existed in many countries before the united states those who formed the united states government rejected the idea that there should be an officially established religion enforced conformity those who formed the constitution chose to have secularization of government intolerance of all religions what evidence can i point to the support of this well the constitution has no reference to religion or to supreme being we often forget the first few words of the constitution we the people it was the people who created the united states government it wasn't said to be divinely inspired or divinely empowered congress was given no authority to legislate over matters of religion article one section eight details 18 powers of congress if you count the subparts many more than that there's no mention there of any ability to create a national church the constitution and its text apart from its bill of rights says there can be no religious test for federal office i believe that the framers of the constitution saw themselves as products of the enlightenment where reason was replacing religion as the basis for authority and the basis for decisions it's not coincidental that when a bill of rights had to be added the first amendment starts with provisions with regard to establishment and free exercise why is that i think there's an internal coherence to the provisions of the first amendment it begins by talking about freedom of conscience the ability of each of us to decide for ourselves what to think including how to worship it then moves on from that to say how we express ourselves the freedom of speech that we possess the ability we have to take our ideas and use them to petition government the ability we have to persuade others by assembly by freedom of the press and so i don't think it was accidental that the first amendment bodies this idea of a secular government and of tolerance of all religions to be sure some of the state constitutions prior to the us constitution did enshrine religions there were official state religions even some that survived the united states constitutions but these were fading away at the time of the united states constitution if you look at the state constitutions that were written between 1776 and 1800 and there were 19 of them during this time they all protected religious freedom georgia adopted a new state constitution in 1798 and it said nor shall any person be denied the enjoyment of any civil right merely on account of his religious principles isn't that georgia saying in 1798 that as a matter of law we're not a christian nation one of the most famous fights with regard to the government and religion occurred in virginia in 1784 patrick henry proposed a property tax to support ministers of christian sex none other than james madison and thomas jefferson opposed this some of the most famous writings that we take today about the meaning of the establishment clause come from what they said then is of course in this context that thomas jefferson uttered the famous words there's a wall that separates church and state and so it was that states that had official religions began to repeal them and they were all eliminated by early in the 19th century and so it was that the new american republic rejected centuries old european practice of linking government authority to a favored religious tradition or sect so it was that well the government of secular identity it also recognized the people free to exercise the religions of their choice make an historical argument but i think the more important point i want to make is the second that the constitution should be interpreted is separating church and state and that includes the constitution should be interpreted reject any idea that were a christian nation i am not an originalist i realized that we can never really know what the framers of the constitution intended and while i can marshal the quotes from madison and jefferson somebody on the other side can probably find quotes too the world we live in today is so vastly different than the world of 1787 or 1791 would be a mistake to say we have to be governed by their conceptions of religion we are so much more diverse pluralistic society with regard to religion than existed then and so i believe that what the establishment clause should be interpreted to mean is at the greatest extent possible there should be separation of church and state i think that we should take it as thomas jefferson got it right when he said there should be a wall that separates church and state the government should have no official religion to write no support to any religion why and again i think i could make a historical originalist argument but that's not what i believe in let me make several arguments that i think are quite important um as to why we should have a secular government and certainly never be a christian nation the first is everyone should be able to feel that it's their government no one should feel like outsiders no one should feel like insiders relative to their government this was the wisdom of justice sanded air connor she very much explained this in saying that we need to have the government be secular and not endorse religion so no one feels like an outsider let me just read a few words from justice o'connor here where she says and i'm quoting her endorsement of religion by the government sends a message to non adherents that they're outsiders and not full members of the political community and accompanying message adherents that they're insiders i argued a case in the supreme court in march of 2005 the anordan versus perry it involves a six foot high three foot wide ten commandments monument that sits directly at the corner the texas state capital in the texas supreme court i was representing thomas van orden a homeless man who brought a challenge against this at one point in the oral argument just as kennedy said to me with real hostility in his voice if your client doesn't like the ten commandments monument why doesn't he just look the other way and my answer was we don't excuse constitutional violations by ignoring them and there would be no stopping point that a city could put a large cross atop city hall and say if you don't like it look the other way and of course then all who are not christian would feel that it's not their government if i had to go testify before city council or state committee or house committee that he had a cross behind the members i would certainly not feel that it was my government i think there's a second reason why i favor separation of church and state and that it's wrong to tax people to support the religions of others this isn't just an idea of liberal law professors early in the 21st century there's none other james madison has said that in opposing the tax that patrick henry opposed james madison said it would be quote immoral to tax people to support the religions of others there are religions that believe that people of my faith cannot go to heaven there is such a thing or believe that people of my faith are doomed to something far worse and they're allowed to have that belief but i shouldn't have to pay my tax dollars for them to teach or proselytize that belief but inevitably if the government becomes aligned with religion and the government can tax people then i am supporting religions that are anathletically my own and that teach things about my religion that are deeply disturbing the third reason for separating church and state is to prevent coercion inevitably the government becomes aligned with religion people feel pressure to participate this is what the supreme court said in the early 1960s in case like angle versus vatali and shant versus avington school district where the court said that even voluntary school prayer is inherently coercive and i have an anecdote to tell here when my youngest child my daughter was in kindergarten she was in a los angeles public school and she proudly came home after about a week of kindergarten and showed my wife and i how she could recite the pledge of allegiance from memory and it included the words under god and it was right around the time the ninth circuit said that under god and the pledge of allegiance was unconstitutional and my wife turned me and said didn't the ninth circuit say that they can't use the words under god and the pledge of allegiance and my daughter interrupt and said oh you have to say those words or you get sent to the principal's office now that's not what anyone in her school said to her but what she had internalized in a week of kindergarten is you do this or you're in trouble we know of the kinds of pressures that exist in school at all levels but it's not just there i remember when i heard that john ashcroft was doing christian prayer breakfast in his office at the justice department did you want to be an insider and go to the christian prayer breakfast or you're going to be an outsider within the justice department the coercive pressure is enormous when the government becomes aligned with religion and fourth and finally i believe we separate church and state to protect religion this isn't a new idea in fact roger williams was the one who very much talked about the importance of separating church and state to protect the church the more the government becomes entangled with religion the more the government is regulating religion this too is a notion that not only is old but it was uttered relatively recently this past june in espinoza versus montana department of revenue where the supreme court said actively when the government gives money to secular private schools it must give it to religious schools it was just this briar who raised the concern of how this is going to mesh government with religion and how it's going to endanger religion as well well because time is limited i just quickly sketched out why i believe there should be separation of church and state and why is a matter of law we should never allow the united states to be a christian nation but this takes me to the third and final part of my remarks what about the future of the supreme court until last friday i would have told you that there are five justices on the court that reject the idea of having a wall that separates church and state now i believe with a nomination and likely confirmation of six of president trump wants there'll be a sixth justice who rejects any idea of a wall separating church and state i think that they will through their decisions allow state and local governments to make it from a practical perspective a christian nation i want to try to give examples so you don't think this is hyperbole um let me look at this with regard to both separation of church and state and free exercise of religion in 1947 in everson versus board of education the supreme court said that the establishment clause of the first amendment applies to state and local governments it's often forgotten that in that decision all nine justices accepted the thomas jefferson's metaphor of a wall separating church and state explains the establishment clause in fact all nine justices subscribe to the idea that you're a wall that separates church and state a wall that's quote high and impregnable but we've had five justices in the last few years and soon to be six who reject the idea of a wall separating church and state their view is that the government violates the establishment clause only if it coerces religious behavior in fact there are two justices now thomas and gorsuch who don't believe that the establishment clause applies to state and local governments at all justice thomas is long taking the position now just as gorsuch has joined him that the establishment clause in their view was just to keep congress from creating a national church to rival state churches and so if a state wants to become an official baptist or Mormon or christian state it's able to do so if it wants to have mandatory prayer it can do that but even if the other conservatives don't go that far and i don't think they will we've seen in recent years how much the court by rejecting the wall separating church and state allows government effectively to make it a christian nation give a couple of examples several years ago there was the case town of greece versus galloway town in upstate new york invited christian clergy members to deliver prayers before the town board meetings every month for many years just christian clergy were invited there was an objection and for a few months they invited non christian clergy and then for a few more years went back to just christian clergy's almost all of the prayers were explicitly christian in their content the united states court of appeals for the second circuit said this is clearly a violation of the establishment clause the government has become in line with a particular religion the supreme court in a five to four decision rejected that just as kennedy wrote the opinion for the court and the court approved allowing the town to have sectarian prayers for town board meetings over a long period of time or take case from june of 2019 american legion versus american humanist association it involves a 45 foot cross that sits on public property at a busy intersection in prince george county maryland the united states court of appeals for the fourth circuit on this to be unconstitutional the fourth circuit said a cross is a quintessential christian religious symbol doesn't belong by itself on a busy intersection on public property the supreme court and it was seven to two reversed and said that it was permissible to have the cross there well what does it mean that we're going to have five and i think six justices who take the view that the establishment clause violated only if there's coercion with regard to religious behavior religious symbols on government property will be allowed without exception the government can put nativity scenes and crosses anywhere it wants there's no basis for objection no longer there will be justices who say that the question is is there an endorsement of religion no longer the justices who will have a maybe the prize of majority to take that position or take the position of separation i think that the accommodation is justices the six where there will allow religious symbols i think they were going to allow much more religious presence at government activities like prayer at town board meetings not only are they going to allow aid to religious schools they're going to require aid to religious schools for decades the issue was when is it permissible for the government to give aid to a religious school and a complex body of law developed but now the conservative majority is saying if the government is giving aid to a secular private school is constitutionally obligated to give that same aid to religious schools the court began down this path in trinity lutheran versus comer in 2017 just said i'm here under dissent pointed out this is the first time in history the supreme court had ever said the government was required to give aid to religion but footnote three in that decision said it was just an aid about a case about aid to playgrounds but we saw an espinoza vs montana department of revenue in june of 2020 that is not just about aid to playgrounds that the court's going to say that anytime the government gives aid to secular institutions it must give it to religious institutions during the early years of the george w bush administration there was a great debate about whether or not there should be charitable choice and what this meant was when the government gives money to secular institutions like for preschools or drug rehabilitation or alcohol rehabilitation should it be able to give that aid to religious institutions now what the supreme court has done is take a policy question in terms of a constitutional requirement saying the government must do some and i said i also want to say a word about free exercise of religion 30 years ago in employment division versus smith it was just a scalia who said that there's no basis for a religious exception from general laws that people shouldn't be able to claim their religion is a basis for violating the law i have never seen a constitutional issue where the sides have flipped so dramatically it was the liberals who criticized employment division versus smith but now it's the conservatives who have rejected employment division versus smith and it's the liberals who have come to embrace it why religions are claiming the ability to discriminate say against gays and lesbians in all aspects of life and i think we now will have five and probably six justices to say that bakeries and florists and stationary stores and photographers can refuse to serve gays and lesbians at their weddings i think we're going to see from the supreme court case this term volt university of philadelphia the courts say that a social service agency has the right to discriminate as gays and lesbians and still participate in placing children in foster care i even will say i think there are five justices who will vote to overrule employment division versus smith there's always a tension between liberty and equality any law that prohibits discrimination limits the freedom to discriminate we made the choice of society for well over 50 years that stopping discrimination is more important than the freedom to discriminate but now we have a majority of the court that's going to say that people in the name of the religion can discriminate and inevitably this is about christians catholics who want to discriminate discriminate with regard to providing services discriminate in employment discriminate with regard to contraceptives i very much lament the direction this is going i don't think it's going to lead to ever officially being declared a christian nation but i think it's going to practically have that effect so i would just conclude since i'm at the end of my 30 minutes by again going back to justice o'connor soon after she left the court soon before she left the court and her last opinions about the establishing clause in june of 2005 she wrote some words that i think we should remember justice o'connor said by enforcing the religion clauses we have kept religion a matter for the individual conscience not for the prosecutor or the bureaucrat at a time when we see around the world the violent consequences of the assumption of religious authority by government americans may count themselves fortunate our regard for constitutional boundaries has protected us from similar travails relying private religious exercise to flourish those who would renegotiate the boundaries between the church and the state must therefore answer a difficult question why would we trade a system that has served us so well for one that has served others so poorly well indeed thank you dean that was uh that was terrific um if uh professors wexler and case can join us um we will have our um last um discussion session and i will read uh questions from the chat function to them uh there's still time to type in questions um if you have questions for our even for our afternoon panelists um and um i i think um i don't think i read this one before uh from jonathan stark for for professor case as a response to um maybe i did read that one before so let me start from patrick elliott huh you didn't i didn't okay uh for professor case as a response to creative poppy modification for the blandenburg cross what would your response be to advocates for preserving the cross as an important historical landmark and not as a religious symbol while potentially dispensing with the religious aspect of the cross many preservationists might take exception with such a modification as damaging its historic significance or integrity so i think this gets to one of the reasons why the court dissolves into a welter of opinions and what justice canady long ago correctly called a jurist providence of minutiae when it deals with monuments and symbols um the particularities of the bladensburg cross as i understand them and i don't think that this is very controversial is that this is not a particularly distinguished monument from an architectural or historical perspective it is significant to anyone uh preservationists uh the inhabitants of bladensburg the descendants of world war one veterans because of what it commemorates not because of the significance historically or architecturally artistically of the way it does that now some people say the significance is that it is a cross and that's exactly what my talk was about but but preservationists would would fall i think into two camps the camp of people who uh care about the material character of the cross is in this particular instance although i can imagine lots of counter examples um a smoke right the people who want to preserve it want to preserve it because of its significance as a memorial for the dead and that has uh i think little to do with whether it becomes a poppy or remains a cross i have a question here from patrick elliot i think um based on the time that he posted it as probably to uh dean chimarinsky do you believe there is a significant risk that the supreme court will invalidate most state constitutional no aid provisions as violating free exercise what impact do rulings like espinoza have on state rights yes i believe there is a real risk that the supreme court will invalidate those no aid provisions i direct you to just a solito's opinion in espinoza who he wrote the opinion that basically would say that he believes those no aid provisions were motivated by hostility to religion and should be struck down on that basis now i think there's so much that's wrong with this first many states had no aid provisions even before blaine amendments began new jersey had a no aid provision in its constitution before there was a united states constitution also the supreme court has said that the motive behind the law isn't a sufficient basis for invalidating the law look at chief justice warren's opinion in united states for so brian third i'm concerned about it from a federalism perspective that i really believe that states should be able to make those choices for themselves 43 states that have no aid provisions in their state constitutions but i think what the supreme court is likely to say is that that violates free exercise and i don't see any way to read chief justice robert's opinion in either espinoza or in trinity lutheran is other than saying when the government gives aid to private secular institutions it must give that same aid to religious institutions unless doing so would violate the establishment clause and very little will violate the establishment clause for these justices from nicholas little with brian with bryer and kagan consistently joining the accommodationists is it realistic to talk about six three rather than eight one when it comes to future establishment cases brian kagan sometimes joined the accommodationists and sometimes not let me start with the sometimes not tana greece versus galloway it was five to four injustice kagan wrote a terrific dissent joined by ginsburg so to more ginsburg bryer and senator um in espinoza which we were just talking about it was five four and ginsburg bryer and senator each wrote dissents which kagan joined on the other hand bryer has not always been with the strict separationists i lost van warden versus perry five to four because of justice bryer um i've got to tell you as i wrote my brief in that case as i appeared to argue i was convinced it was all about sienna day o'connor i made my brief a shameless attempt to pander to justice o'connor if i could have put just so connor's picture on the front of my brief i would have done so the week before the oral argument reporter called me and said you cite justice o'connor 23 times in your brief and i said yeah so i got o'connor's vote but bryer concurred in the judgment and it was the fifth vote to allow the texas ten commanders monument on the other hand that same day it was five four in the kentucky case with his voting to strike down the ten commandments monuments there are the ten commandments displays that were there um bryer and kagan were with the majority seven to two and trinity lutheran there were the majority with the majority last year seven to two an american legion versus american human association there were the majority seven to two and the our lady adwata lupe school this term they were the majority seven to two and little sister the poor versus pennsylvania so in those cases without ginsburg it would be eight to one and i think that ginsburg not being there matters in another sense as well she was born in 1933 she had seen anti-semitism in a way that none of the other justice even the jewish justices had and she talked about that and i think she could bring that human experience into why it's so important that we not be legally a christian nation why it's so important to be separation of church and state and i think losing that voice on the court is a really major loss for the justices in the nation from philip premot dean chimarensky why should we conclude that the establishment clause was meant to apply to states given the existence of state churches parish tax schemes and religious tests in the early republic and the persistence of religious tests in early modern times furthermore shouldn't we respect shouldn't respect for democratic self-governance lead us to afford state and local communities the discretion to govern themselves with respect to moral and ecclesiastical matters let me take this one at a time the key question is not what was intended about the establishment clause in 1791 it was thought that none of the bill of rights applied to the states in 1791 chief justice marshal in baron versus mayor and city of baltimore said it's an easy question the bill of rights was meant for the federal government it was the 14th amendment the equal protect the due process clause especially that was interpreted to apply the bill of rights to state and local governments so i think it's a mistake to say what did the framers intend in 1791 but i also think it's a mistake to focus on what the framers intended i think the question always has to be what's the best way of interpreting the constitution now i could certainly make an argument and we make it in our book as to why separation of church and state is what the establishment clause is about but i think for now i've tried to give the reasons why that's the better perspective should we leave this to just state and local determination no more than we should leave freedom of speech or equal protection or cruel and unusual punishment or due process to state and local interpretation i think that it's crucial that we enforce the basic rights of the constitution against state and local governments and i think one of those basic rights is found in the establishment clause and another in the free exercise clause and i think that includes separation of church and state um professor waxlow professor case do you want to add anything at the end here so i want to add a question to anyone who can answer it which is i agree with what dean termorenski said about the future of state amendments including but not limited to blaine amendments what puzzled me is that um in espinoza versus montana the court fudged that it didn't say i mean it clearly implied that these amendments were gone but it didn't have the courage of its convictions to make them go quite yet so that i agree that you know the trajectory is clearly for them to be gone but i'm not clear why they're not already gone um from either a drafting or a broader perspective um let me if nobody else gonna i'll answer your question with a question and then try to answer the question why has the lemon test survived after all there's five votes to overrule the lemon test in my answer that is because the court has not needed to overrule the lemon test to accomplish whatever it wants in advancing religion the court can uphold the cross in american legion versus american human association without needing to overrule the lemon test the court can approve the prayer in town of greece for scallowy without overruling lemon test i think the court's been able to do what it wants with regard to requiring age of religion without needing to declare those provisions facially unconstitutional i think elito wanted to go there in espinoza and that's why he wrote the opinion he did i think the supreme court can achieve exactly the same thing without declaring facial and constitutional by the path that they set out in trinity lutheran in espinoza requiring government aid go to religious institutions when it goes to secular institutions and so in also first case this is a new path trinity lutheran is three years old espinoza is three months old um so i wouldn't say we're at the end of that path so i've got i have a question and and um i skate on thin ice uh on asking it because constitutional law is not my principle it's not it's not an area of my of my scholarship except for second amendment scholarship um but in this question about whether the establishment clause should be incorporated by the 14th amendment um against the states um isn't isn't that isn't the test the palco test and and didn't cardozo develop that and isn't isn't it something along the lines that what is incorporated are those principles that are fundamental to our conception of ordered liberty and if that's the case hasn't a wall of separation between church and state become fundamental to our concept of american ordered liberty so i would say um the current court is on a path and has been since was on a taboor to embracing roger williams and rejecting um thomas jefferson's view of a separation of church and state in that it comes close to embracing this idea of the freedom of the church right so what is inherent in the concept of ordered liberty from the original bill of rights on down includes diversity and the court seems to be to be in the way it incorporates the establishment clause heading toward the worst of both worlds from um a jeffersonian or from uh a secular liberties point of view because it is eliminating and this gets to my earlier question to dean charmeransky uh the possibility of diversity of a state's embracing distance from religion embracing something more secular rather than embracing the Mormon church as the state of utah clearly would have done had it been so allowed um at the time it entered the union any parting comments from anybody else hearing none um i want to thank everybody um the the uh the three panelists who are still with us the um the four speakers this morning uh people have asked questions uh for a truly terrific um live symposium today uh we're all looking forward to um what i think is going to be a very important uh law review issue um i wish everybody a terrific weekend um goodbye from um the uh as professor uh beijon uh uh reminded us earlier um from robes island the latrine of america bye bye