Voices of Freedom - Interview with Mark Rienzi

Episode Date: November 16, 2023

Religious freedom protects far more than the right to practice one’s faith. It also shields people from being compelled by the government to participate in activities that are not in accordance with their religious beliefs. Given the fierce battles over culture and politics today, it’s not surprising that religious freedom has been significantly challenged. Perhaps what is surprising is the state of religious freedom, given the current environment. Our guest on this episode of Voices of Freedom is Mark Rienzi, one of the country’s leading defenders of religious freedom. He shares his thoughts on why religious liberty is one of our most important rights, how it’s faring amidst significant legal challenges, and more. Topics discussed by Mark Rienzi and Rick Graber, President and CEO, The Bradley Foundation, include: ·         How Becket decides which cases to take ·         Whether Americans’ value of religious freedom has diminished over time ·         The state of religious freedom in America ·         The administrative state’s impact on religious liberty ·         How geopolitical events affect religious freedom at home ·         How religious freedom fared during the U.S. Supreme Court’s last term and how they may rule on religious liberty cases in the current term  Mark Rienzi is the President and CEO of The Becket Fund for Religious Liberty, a non-profit public interest law firm with a mission to protect the free expression of all faiths. He is also a Professor of Law at the Catholic University of America, Columbus School of Law, where he is co-director of the Center for Religious Liberty and has served as a Visiting Professor of Law at Harvard Law School. 

Hello and welcome to Voices of Freedom, a Bradley Foundation podcast. I'm Rick Graber, President and CEO of the Bradley Foundation. On the podcast, we'll explore issues that affect our freedoms with a focus on free enterprise, free speech, and educational freedom. So let's get started. Freedom of religion is a fundamental right in America, and obviously it played a big part in the country's founding. Framers of the Constitution strongly believed that religious liberty was necessary for the republic to function. In arguing for the separation of church and state, Thomas Jefferson

declared that any effort of government to control religious beliefs amounted to, in his words, tyranny over the mind. Jefferson would be in lockstep with our guest on this episode of Voices of Freedom. Mark Rienzi is one of the leading defenders of religious liberty in the country. He is president and CEO of the Beckett Fund for Religious Liberty, which is a nonprofit public interest law firm with a mission to protect the free expression of all faiths. Mark, it is great to have you with us. Welcome. Great to be here, Rick. Thanks so much. Pleasure. Let's talk a little bit about you, Mark. You have a bachelor's degree from Princeton. You've got a law degree from

Harvard. To me, that means you could have done just about anything you want in the world of law. You could have been a partner in a big law firm. You could be general counsel at a large corporation. But you chose to focus your career on protecting religious liberty. Why? Well, I think religious liberty is one of the most important issues in the country right now. It's funny, you go back to Jefferson, even before Jefferson, religious liberty was a crucial part of who we were as Americans and how we're going to figure out how to live together amid all these differences. So it's something that throughout our history, I think has been deeply important. It was important to me. It was important to me, frankly, to find a use for my

legal skills other than just making money for myself or making myself comfortable. I want to use the skills God gave me to do good things in the world. And religious liberty has been a wonderful way to do it. And I think when we do it right, which is what we're trying to do at Beckett, when we do it right, we can build something that's good for our families, good for our churches, good for our country, good for the world. And that's what religious liberty is and has been. And I'm just trying my best to be part of pushing a good thing forward. Well, you and your organization are doing a great job. Let's talk about Beckett a little bit.

Your organization defends the religious freedom of all faiths. Spend a little time and tell us more about Beckett. Talk to us a little bit about how you decide which cases to take on. I'm sure our audience would be interested. Yeah, so the Beckett Fund was founded 30 years ago by Seamus Hassan, who is a brilliant visionary lawyer and thinker who's still on our board, still active with the group. And Seamus had the insight 30 years ago to know that the country would need somebody who would stand up for the principle of religious liberty for everyone. In other words, not just fighting it for my religious group or yours or because it's my turf or somebody else's, but really saying that religious liberty is an important principle for

everyone. And that if my neighbor who disagrees with me doesn't have religious liberty, I don't have it either. When Seamus founded Beckett, religious liberty was actually broadly popular in the country. The country had just seen the signing of the Religious Freedom Restoration Act, which really brought together the left and the right, both politically and socially in favor of that law. So Seamus was a little bit ahead of his time in knowing that religious liberty would need some strong defenders who would defend it for everybody. But that's the vision of the Beckett Fund. We do it because we think it's right to defend everybody. I really honestly do believe that my neighbors have every

bit as much religious liberty as I do, and they should, even if we disagree. And it's also the right way to protect religious liberty. In other words, we're going to build up a stronger religious liberty for everyone if everybody's getting protected. A lot of our First Amendment rights, for example, we owe to courageous Jehovah's Witnesses in the middle of the 20th century because they were running themselves into trouble and they were refusing to yield. And our rights to free speech and to the free exercise of religion were often developed in cases involving the Jehovah's Witnesses. Well, I'm not a Jehovah's Witness. I don't think you are, but the truth is we both walk around benefiting from those cases. So Beckett really is committed to the idea that this has to be for everybody. Sometimes that means we tick off folks on the left. Sometimes that means we may tick off folks on the right. We are about defending the principle and we do it for everybody.

How big is your team? Team of 44 employees right now, about 22 lawyers. So it's not huge. And you mentioned case selection. We can't take every case that that comes to us. We try to think hard about which cases are likely to make important law in the courts of appeals or the Supreme Court. So which cases we can take that if we win that case, we set a principle, a precedent that will be valuable for a lot of people. That's an important point. It's not just taking cases to keep people busy. It's picking the right cases with the right set of facts that can make a difference. Yeah, that's exactly right.

There are a lot of cases that we'd love to take if we had endless resources, but we don't have endless resources. We have to be very strategic about where we deploy our resources. And I'm very proud to say we've been enormously effective over the years in doing that. We've been we've been pretty good at picking cases and cases that go the distance and make make important law for the whole country. You really were part of the early part of public interest law firms, weren't you? I mean, I think an explosion in the states in particular in recent years. Yeah, I think there's been a lot.

But we're pioneers. Yeah, the last 30 years have seen a real flowering of that. You know, in some ways, I think all the good ones are modeled after the NAACP in the 30s and 40s, right? So public interest law firms engaged in highly strategic, thoughtful litigation. That's what we aim to be like. And I think a lot more people are doing it now than were doing it a generation or two ago. Right. Interesting. Well, there's really no question that America's founders viewed religious expression as a human right, so much so that they enshrined it in the First Amendment

of the Constitution. When you look back, do you think modern American society today values religious freedom as much as our founders did? I actually think so. I know you see the Pew surveys that tell you there are more nuns. And look, these days, you're more likely on religion, just like about everything else. you're more likely to have the flaming wars on Twitter and the internet and things like that, making it seem like everybody's against each other all the time. But I think in their hearts, and I think most everyday people fully respect the idea that their neighbor ought to be allowed to come up with his or her own ideas about God and ought to be able to live those out in peace. I think we're actually still broadly

tolerant people in a good way, despite the sometimes shrieking headlines and Twitter wars that you see. So you would say that the state of religious freedom in America today is okay? No, I'd actually say it's excellent. I think the state of religious liberty is excellent in the country today. With everything else that seems to be spinning out of control and going off the rails in different ways, religious liberty has been strong, particularly the last, say, 10 to 15 years. Often in situations where you would expect to see these harsh 5-4 opinions or the justices can't get along or the ACLU will never let something die. And in fact, what we're seeing is we're able to get to broad majorities quite often. And even groups like the ACLU, which your listeners probably aren't used to thinking of the

ACLU packing up and quitting and walking off the field from a fight. But in some religious liberty fights, that's precisely what they're doing. And that's a good thing because they're learning the lesson from those big wins in court and they're choosing to go fight about other things. So religious liberty, I think, is actually quite strong these days. That's great. So many of our guests on these podcasts, we search for something positive. But you're coming at this, you know, bullish on it, which is fantastic. Yeah, well, you know, we're bullish because we can see the results. We can see what the courts have been doing. We can see what's been going on in the country. I mean, certainly it's true. There are probably more opponents of religion these days and opponents of religious liberty, probably more than in past years, right? There

are some politicians who seem to think they get bonus points for picking on this religious group or that. So there's more of that. But when we stand up and have those fights and go to court about them, the religious side tends to win and tends to make good precedents that build in the law in a good way for the future. So in some sense, there are very aggressive opponents who are overreaching and doing bad things. And that's bad. I wish that didn't happen. But the very good aspect of that is that when we take them to task and we stand up and it's really it's not it's not the lawyers, it's the clients really who need to have the guts to stand in the fight and to take the punches. But when we do, we tend to win. And I think that's good. And I think in the long run, that'll make the enemies

realize they should back off. What's the impact of the ever-expanding administrative state on religious liberty? Can't be a positive. No, that's not a positive. Other than making good opportunities to go make good law in court, that's not a positive. Other than making good opportunities to go make good law in court. That's not a positive. Yeah, look, the administrative state is huge and ever-growing. And one thing we've noticed, it's really over the past 40 or 50 years, but it keeps accelerating, is that it used to be the case that the religious liberty conflicts that would show up in court would be where a legislature passed a law and restricted someone's rights.

And Justice Scalia, in his famous opinion in the Smith case, actually said, look, like, we'll just trust the legislature. And at least there there is a democratic process and people might have a even the minority might have a chance to get heard. I think it was I think it was wrong about it then. But I think what's happened since then has proven even more wrong because more and more law just isn't made by the legislature. It's made by these unelected bureaucrats who no one really knows how to control at the ballot box. And so more and more of the administrative state, which has its tentacles in every area of life one way or the other. Well, when they do that more and more, they're going to bump into religious people, religious acts, religious actors, religious institutions. And so the agencies end up being at the root of many of the big religious freedom cases that we have these days. And it's a problem. And it would be better if if those agencies weren't quite so powerful, didn't have quite so much reach. We've watched the atrocities that have gone on in recent weeks in Israel.

And we've watched the debate, the unrest that has resulted from that, particularly on college campuses. How would you describe how these developments like this impact religious liberty in this country? Yeah, one, awful, awful developments in the Mideast. And I agree with you, awful and troubling developments on our college campuses with the, you know, the anti-Semitism really rearing its head more and more. And that shouldn't be in a civilized, liberal, pluralistic society that we're in. The idea that the cops last week said Jews should be worried about being in Brooklyn is, I was going to say, unbelievable. It's sadly believable, but it's horrific and it's shameful in America. How does that interact with religious liberty?

That might be too big a question. I'm not really sure, right? It's terrible. It's awful. It's uncivil and it's an unwillingness to live in peace with your neighbor and religious liberty done right really is all about being able to say, my neighbor is allowed to think of different beliefs and have different religious beliefs than mine. And I think we should both be able to live and peacefully coexist. Sadly, there's a lot of people who don't seem to have that peaceful coexistence premise at all when thinking about these conflicts. And to me, it's an example of the awfulness that happens, right? The true awfulness that happens when people don't learn to live in peace with a neighbor who's got a different religion.

And that's troubling. Honestly, it makes the fights that makes fighting in court about other aspects of religious liberty seem pretty small potatoes. It's some of the tribalism almost that we see going on in this country right now. Just. It ignores the importance that people reflect on what it means to be an American, what it means to be a citizen. And it just seems that we're losing some of that these days. This, you would think, is something that all Americans could rally behind and condemn. It's just not the case. Yeah, you would think and hope that. I agree. Let's talk about what's going on at the Supreme Court. Let's look back a little bit and then let's look forward. But let's look back first and talk about the last term. The court took on several cases that talked about religious freedom.

Discuss with us a little bit those cases, how the court has been approaching religious liberty in recent years. What's the current state of affairs with the court? Sure. The current state of affairs with the court is very good. As you would think. Yeah, it has been good really since 2012. The Supreme Court has decided a whole slew. I lose track of the numbers, but it's 20-something now,

20-something cases in a row that the Supreme Court has decided in favor of religious liberty or the religious party. And that's a good development. And those cases are often 9-0 or 7-2 or 6-3, but they're not like nail-biter 5-4 tense decisions. And I think the court really is trying to convey and lead the country a little bit on the idea that religious liberty is an important part of peaceful pluralism and living in harmony with people who have different beliefs. That was really an original part of the American experiment, as you said in your introduction, an original part of the American experiment. We could look over at Europe, where people are

killing each other and taking over governments and murdering each other over doctrinal differences about religion. And I think early Americans decided they didn't want that and they wanted a different approach. And look, sometimes they failed. Sometimes they did a poor job. Sometimes they turned around and were every bit as bad to the new religion in town as somebody had been to them. So the American experience is far from perfect on that. But there's an early decision that we're going to use this as a way to live together in peace amidst disagreement. I think the court has been leading us that way with many of its recent decisions. So last term, they decided the 303 creative case. That was the one about the website designer who didn't want to make a website for a same-sex wedding. Now, the court decided that

on speech grounds rather than religion grounds. They just said, look, making a website, of course, that's speech, right? If you think back a few years, we had the cake baker cases, and you could think, well, is a cake speechy? And I'm sympathetic with the baker. I think it was expressive. I think that that's why the fight. But here, it's a Web site. Right. You can't really wonder or be confused about whether a Web site is speechy. It's words on a screen. Everybody knows that speechy. And the court said in a 6-3 decision that, of course, the government can't make somebody make a Web site that she disagrees with. It can't make an op ed writer write an op ed. she disagrees with. It can't make an op-ed writer write an op-ed he disagrees with. It can't make a singer sing a song she disagrees with. It can't make somebody write a website they

disagree with. And the court made clear that public accommodations laws, while generally good things, right, generally good things, can't be used to treat somebody's written or spoken or artistic production as if that's the public accommodation. And everybody's got a right to it. Right. Like I don't have a right to a New York Times op ed. I might want one. It might be good for my cause if they let me publish one. But that's theirs. And the website designer, like those are her website. So she got to do that. Then the court also decided a case called Groff, which was really more about the rights of employees and employers.

So it's about a postal service employee who took a job as a letter carrier thinking, this is great. I don't want to work Sundays and the post office doesn't deliver letters on Sundays. That was great until the post office cut a deal with Amazon to deliver Amazon packages on Sunday. And then suddenly that guy's perfect plan was blown up and he had to go to his employer and say, hey, Sunday is my Sabbath and I'm not supposed to work. Can you accommodate me? And the question in the case that the court had to address was, well, what's the legal standard for an employer having to accommodate an employee's religious observance? And what the court ended up saying in Groff, they gave a very pro-employee view of that standard in which they said, look, the employer is supposed to accommodate religious liberty. And this is in the Civil Rights Act of 1964 and the amendments from

1972. But under the Civil Rights Act, employers have an obligation to accommodate, to reasonably accommodate religious exercise unless it's an undue hardship, right? That's the words Congress used, unless it's an undue hardship. And what the court said last term, unanimously, actually, the court said this, was that undue hardship has real meaning, which means if it's easy enough or it's just a matter of switching a shift or something, the employer should do it. And if you're the United States Postal Service, of course you could get some other guy to deliver the Amazon packages on Sunday. If you're Walmart, of course you can get somebody else to work the Orthodox Jews shift on a Saturday. And ultimately, I think that's going to be very good for religious workers. If you

think about who was losing out under the old system, it tends to be poorer people, people with less bargaining power in lower paying jobs. And so I think it was a good thing that the justices, again, all nine of them interpreted the law in a way that would be more protective of those religious employees. It doesn't mean the employer always loses. It doesn't mean every employer, you know, if I want to, if I can't work on Saturday and I want to be a college football coach, I'm not going to win, right? Most of the games happen to be on Saturdays. But in the main, most of the time we can work around each other's religious observances and that's what decent people do. And that's what Congress said we should do. And I was happy to

see the court strongly endorse that idea. Who's writing the opinions for the majority in these cases? Is it someone from the center-right, center-left, all of the above? All of the above, really. It varies. They vary who gets the pen on those. But there's quite a bit of variety in these First Amendment cases. Interesting. Interesting. Let's talk about what's coming down the track now, this next year. What do you expect, what cases do you expect the court to take, or have they already agreed to take, and any sense of what might come out of those? Yeah, so the fascinating thing is, what is it? It's November 1st as we're recording this, at least. And so far, there are no religious liberty cases on the

court's docket this year. Interesting. That's a shift from what it's been like the past decade or so. They've been taking a couple or three a year for a while. I suspect that by the end of the term, they'll probably get a couple of them on the docket, but they have not granted in any religious liberty cases yet. They've granted in one administrative law case that may have some impact on religious liberty. It's a case called Loper Bright, and it's about the administrative state and how much deference those agencies get. So that may have an impact on religion. In terms of what they might grant on this year, we've got a cert petition that they're thinking about about speakers outside of abortion clinics. There's an old case called Hill versus Colorado,

where sort of in the thick of the abortion distortion in the world, the court twisted the First Amendment to make it possible to arrest people for peacefully handing out a leaflet or engaging in conversation on a public sidewalk. We've got a case that challenges that, that they're thinking about the cert petition on. And then there are a number of issues kicking around the lower courts of appeals. Issues about religious hiring. Issues about Native American sacred land claims where the federal government is going to destroy some Native American religious sites, issues about student groups in public schools. So there's a lot kicking around the lower courts. We just don't know whether any of it's going to get to the

Supreme Court this year or not. Are the lower courts all over the map on religious liberty? I mean, you've made very clear that the Supreme Court's been solid and strong. Yeah. So the lower courts are more mixed, but the lower courts, frankly, have been doing a pretty good job on religious liberty lately. We just had a student rights case, so a fellowship of Christian athletes group that was really harassed and kicked off a high school campus by the school administrators. They just won before the en banc Ninth Circuit, a really strong free exercise win about their right to exist on campus and to choose their own leaders and to still participate in the school's life in a way that makes the Ninth Circuit Court of Appeals the strongest circuit in the country for religious student groups. So there's a lot of activity in the lower courts, and some of it is, frankly, better than your listeners might be used to expecting. Yes, great. Mark, one last question. What takeaway would you like our listeners to

take with them from our conversation today? Obviously, on the topic of religious freedom and religious liberty. If I had the lottery numbers, I'd give them that. That religious liberty is strong, that it's an important part of who we are as Americans, that it's worth protecting. But here's the most important thing. Religious liberty doesn't mean a thing if people don't exercise their religion. And bad things tend to happen when good people just sit quietly by or try to duck and not get attention. It's really important for people to stand up and exercise their religion. When you do it, other people will often end up showing up beside you or end up drawing courage from your doing it. So I think America was built and sustained

by people willing to stand up and exercise those beliefs. And it's important that people continue to do that. What religious liberty does is it makes it possible for those things to happen. But those things need to happen. It's good for the country. It's good for our children, our families, our churches. It's just a good thing. So people should have the courage to do it. Well said. Mark Ranzi, thanks so much for spending time with us today. And thanks for the outstanding work that the Beckett Fund has done and will continue to do it.

It really makes a difference in our country, and we're all appreciative. Well, thank you. It's a pleasure to be here and get to talk to you, Rick. And as always, thanks to all of you for joining us on this episode of Voices of Freedom.