← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Religious Belief, Sincerely Held
01:05:09
Examining the narrow slicing of the Masterpiece cake shop holding, and contemplating the role of faith in our laws.
Loading summary
Transcript57 lines
- [00:04]
Mark Joseph Stern
Even though it's a compromise, even though it's basically a punt, it still feels like there's something kind of rotten here. And that gives gay people and LGBTQ people reason for pause.
- [00:16]
Reverend Dr. William J. Barber II
We should never allow this kind of religious nationalism that suggests that if you're anti gay, anti abortion, pro prayer in the school, pro tax cuts, pro guns, then somehow you are advocating a moral and and religious position. It has to be challenged, and people of faith and deep commitment have to challenge it.
- [00:40]
Host (possibly Dahlia Lithwick)
Hi and welcome back to Amicus, Slate's podcast about the Supreme Court and the law and the rule of law in the era of Donald Trump. This past week was a big, huge whomping one in Supreme Court history with a 7 to 2 decision in Masterpiece Cakeshop. The that is a case we've talked about a whole bunch on this show and we're going to talk about that folding in just a moment. Later on in the show, we are going to talk to. This is quite exciting for me. The Reverend Dr. William Barber II. He has relaunched the Poor People's Campaign. He is actually a man that I have come to slightly selfishly view as my own personal rabbi and possibly my own pocket Supreme Court justice. And we're gonna talk to him about the Constitution and poverty and morality and law. But right now we are going to turn to Slate's own wonderful Mark Joseph Stern to talk about the big, big news from the High Court this week. Mark, welcome back to Amicus. It's always great to have you.
- [01:41]
Mark Joseph Stern
Thanks so much for having me back on. Always a pleasure.
- [01:43]
Host (possibly Dahlia Lithwick)
It's such a joy always to have you here. And I guess we're gonna just focus on the big, big, big news of masterpiece Cakeshop vs Colorado Civil rights Commission, I think freaked us both out on Monday because I didn't see it coming. And before we talk about it, Mark, well, let's do this. Give us, give us a minute on what the, what the case was for people who like say, live under rocks and catch us up on what the issue was in Masterpiece and then we'll talk about the decision.
- [02:17]
Mark Joseph Stern
Right. So this was the gay cake case as it is affectionately known in much of the press. And it began when two dudes, a same sex couple, walked into Jack Phillips store, Masterpiece Cake Shop in Colorado and said, hello sir, we would like a wedding cake for our wedding. They were planning to get married out of state. At this time, marriage equality had not come to Colorado. And Jack Phillips said, no, I'm not going to do that for you, even though I am a business, a for profit business open to the entire public. I am not going to make a cake for you because I don't do wedding cakes for same sex couples because I strongly and vigorously oppose same sex marriage. The couple was understandably quite hurt and they wound up filing a complaint with the Colorado Civil Rights Commission which ended up adjudicating this dispute. Long story short, the commission found quite correctly that Phillips had committed an act of unlawful discrimination under Colorado law. The state has a broad non discrimination law that prohibits discrimination on the basis of sexual orientation in public accommodations. No one denies that Masterpiece Cakeshop is a public accommodation. And so the Colorado Civil Rights Commission told Phillips, please stop discriminating on the basis of sexual orientation. Please tell your staff you may no longer turn away gay customers. And Phillips refused. He had the backing of an anti LGBTQ law firm called Alliance Defending Freedom. And ADF encouraged him to flee fight this ruling, which he did in the Colorado courts. He lost quite badly. But he took his case to the US Supreme Court which agreed to hear it. His argument was that by requiring him to serve same sex couples, the Colorado Civil Rights Commission had violated his rights to free exercise of religion and freedom of speech under the First Amendment. It was quite a surprise when the Supreme Court took this case. The court has swatted down, turned away very similar cases in the past, but it seemed that the justices were ready to decide this putative clash between religious liberty, free speech and non discrimination. And so the justices heard arguments in December and on Monday we got our ruling.
- [04:51]
Host (possibly Dahlia Lithwick)
Okay, excellent. And I think before we talk about the ruling, I want to talk about the oddity of this was a 7 to 2 decision authored by Anthony Kennedy on behalf of the majority. Within 20 minutes of the ruling coming down, your headline was correct, but an awful lot of the headlines said Baker wins Unequivocally Triumphs and crushes the other side. Can we talk about journalism for a second?
- [05:21]
Mark Joseph Stern
Why yes, please.
- [05:23]
Host (possibly Dahlia Lithwick)
Why did we really. Again, not you. But boy, the first reports out were so bad. And I just wanted to ask you because you and I have talked about this before privately, but is this just a function of. We're going so fast now that most reporters have to pre write their stories and then a headline gets slapped on and we massively distort the conversation because the first two hours of reporting are often really bad, or at the very least the headlines are really bad.
- [05:54]
Mark Joseph Stern
Well, it happens every June. And the problem here is that you have a bunch of reporters, not all of them super familiar with the cases or the case law, trying to jump on and report out a big, big story from Supreme Court before all of their colleagues get to it. It's kind of a race. And so typically a reporter will sort of skim the decision, maybe the first few pages and try to come up with a few paragraphs and a big blaring headline on the basis of their brief skim. And as we relearned on Monday, that is really not an effective or even efficient way of reporting on the Supreme Court because the Supreme Court makes law, and law can be really complicated and naughty and thorny. And that is what Masterpiece Cakeshop was. It was not a ruling that fit virtually anybody's pre written narratives. I know lots of advocacy groups and journalists had these pre written stories for whichever way the case came down, but it ended up coming down in a very unexpected way that was difficult, if not impossible to pre write without some kind of insider knowledge. And so we got these terrible headlines like Baker wins huge fight against Colorado, Baker gets vindicated. And in reality, the baker, Jack Phillips, he wasn't really entirely vindicated. He did win, but he could wind up losing this particular case and his broader campaign to undermine LGBTQ civil rights laws that certainly fell flat on its face this time around. And so pretty much all of the instant reporting Slate accepted and a few other outlets was terrible because it made it seem as though the baker had won a sweeping victory when he won no such thing.
- [07:38]
Host (possibly Dahlia Lithwick)
And I think just one other knit on this, which is crazy making, is because it was formally a 7 to 2 decision. When some of the headlines that did get it right said this was a narrow win, then the, the sort of supporters of the cake baker went crazy and said it's not narrow, it's seven to two. Uh, and that was just, I think, a failure to understand that narrow doesn't mean vote can't narrow what is the scope of the ruling? And so at that point, we have Donald Trump Jr. Tweeting about constitutional doctrine because he thinks seven to two means something that it doesn't mean, therefore fake news. So I actually, I make the point not to troll Donald Trump, well, a little bit to TROLL Donald Trump Jr. But more to make the point that this is the problem with having an institution that does this. Jack in the box. Last week of June, or in this case, first week of June, like, here's everything. And because people don't understand the nuance the way you do, then the story gets pushed out all around the country. Not only that the baker crushed the other side, but also that this was, you know, Kagan and Breyer Siding with the Court's conservatives somehow to vindicate the religious liberty rights of the baker. And that fake news would tell you otherwise. In other words, it maps so beautifully into this meta conversation about the press and truth and bias. And in fact, this is just. This is speed that is contributing to that, right?
- [09:11]
Mark Joseph Stern
Yeah, I think so. And I also think both sides really wanted to claim a win, and there wasn't a clean win either way. It was a very nuanced and complex opinion. So it wound up being Ted Cruz and Donald Trump Jr. And John Cornyn fighting against every reporter who actually read the decision. Ted Cruz, who really should know better, claiming that it couldn't have been narrow because it was seven to two, when in fact, the more lopsided the vote count at the Supreme Court, usually the narrower the actual holding, because it means you got more justices across the ideological spectrum to sign on, which often indicates a compromise, which is clearly what we got in Masterpiece. So, yeah, it was a disaster. I spent a lot of Monday with my head in my hands, just like rage, tweeting Ted Cruz for no good reason, instead of reporting on this case as I should have been for slate.com because truly it was narrow. It was a common compromise, and anybody arguing otherwise is just pursuing their own dumb agenda.
- [10:10]
Host (possibly Dahlia Lithwick)
Okay, good, good. Let's get it out there. Ladies and gentlemen, this is Mark Stern and I, who once upon a time did a podcast called Neil Gorsuch. Not Beelzebub. Right. Like or not Satan, not Lucifer.
- [10:23]
Mark Joseph Stern
Yeah, I think it was not Lucifer, which I'm never gonna live down.
- [10:27]
Host (possibly Dahlia Lithwick)
Nope, nope, nope. Most of my hate mail. Okay, so Mark, let's talk about this compromise. I think that other than people on the strong polls of this debate, it's fairly clear that the Court did as close as it could come to doing another Bush v. Gore. Only deciding on the facts of this case, by the way, because Obergefell hadn't been decided. This was pre Obergefell. So, you know, it's so far past that it's never gonna happen again. I mean, this is. I don't know how to call this anything but a really narrow ruling. So can you help understand what the seven justices in the majority decided in terms of this very, very major conflict? As you said, this was going to be the head on collision of religious liberty objectors on the one hand and civil rights laws on the other. What did the Court decide about that?
- [11:27]
Mark Joseph Stern
Of the seven justices in the majority, there was really just one point of agreement. The seven justices splintered into separate concurrences you had Gorsuch and Thomas versus Kagan, and then you had RBG and dissent attacking both of them. But the basic point of agreement was that when the Colorado Civil Rights Commission adjudicated this dispute, several commissioners made comments about the use of religious rhetoric to justify discrimination historically, which the Court found to exhibit impermissible hostility toward religion. There was a comment made by one commissioner that some of the worst historical atrocities, including slavery and the Holocaust, were justified by some by citation to religion. And that to Kennedy, and the majority was unacceptable under the First Amendment's free exercise clause. Because under a case actually written by Justice Kennedy a long time ago, the government violates free exercise when it targets religion or religious belief and moves away from its commitment to religious neutrality. The government has to be totally neutral toward religion when adjudicating these disputes. And Kennedy and the Court said this commission was not neutral. There is an argument to be made that that holding is total bs and then in fact, the statements made were historically accurate and expressed nothing but truth. But seven justices felt otherwise. And so that's the only holding we got. And I think it's pretty obvious from my summary there why that holding is narrow. Because this is one or two commissioners in one single case, a fact pattern that is almost certain never to be repeated ever again in the history of this country unless we have some really stupid civil rights commissioners. Because the Court made it clear that you probably can require bakeries and other stores to serve same sex couples. As long as you, the Civil Rights Commission, are really nice about it. You have to be super kind. You have to, as Ian Millhiser wrote at ThinkProgress, you have to carve out a safe space for these special snowflakes, anti gay Christians and, you know, anti LGBTQ businesses. So long as you are really nice about all of that, you can probably implement non discrimination law. But because the Colorado Commission was not sufficiently nice, this particular case has to be sent back down.
- [14:05]
Host (possibly Dahlia Lithwick)
Right. I think I described it in my piece as constitutionalizing civility. Right. We have to talk kindly. And so we'll all talk kindly. And it doesn't actually resolve on the merits any issues. What it's regulating is how we talk about the issues, which is, again, very meta. But I think it's important to point out here that this case was argued at the Court and briefed at the Court as a free speech case, not a religious free exercise case. And we've talked about it on the show. Part of the reason that this is a very hard case, if you're going to do it on pure speech lines is that you get into fights and listeners will remember about whether florists are artists and whether the makeup person is an artist and the busboy, if you say that the cake baker is an artist. For purposes of this analysis and listening to oral argument, it was clear that some of the Justices were starting to fixate on the speech of one of the commissioners because oh my God. Otherwise we have to draw a line between photographers and busboys, right?
- [15:08]
Mark Joseph Stern
Yes, that's right. And it turned out there was no appetite to do that, to draw that bright line among a majority of the Justices. Although Justice Thomas, in a separate concurring opinion joined only by Justice Gorsuch, totally embraced that and basically said the line is wherever the busboy or the florist says it is. Thomas bought the argument by the ADF hook, line and sinker that as soon as someone identifies as an artist, whether it be a baker or a florist or even it seems a makeup artist or a jeweler, that they get First Amendment protection and that any restriction on their business, really on their business activities has to be subject to strict scrutiny, which is basically a recipe for undermining every single civil rights law in the country because as Thomas candidly noted, none of those laws can survive strict scrutiny under our current free speech regime. So Thomas was out there waving his hand saying we should have ruled for the baker, you know, in absolute terms and said you get to do whatever you want, you get to turn away whoever you want. But the rest of the Justices were sort of cringing in a corner saying let's not touch that one today, let's leave it for another time, cuz we have enough on our plate this term.
- [16:28]
Host (possibly Dahlia Lithwick)
So let's make really clear that the Justices emphatically do not accept the cake artist free speech rationale. And they emphatically don't bless the idea that religious abus projectors are free from all civil rights statutes. So why the panic? There was an enormous amount of post announcement panic where I think on both sides there was a feeling that this is the thin edge of the wedge. End times are upon us. Is that again because the groups were preparing for a huge decision and they had to make the case that, you know, the needle had moved somehow or has the needle moved in some way that I don't understand?
- [17:11]
Mark Joseph Stern
I think probably in part both sides were trying to fit this narrow holding into their pre written narratives, which on the left were certainly sort of sky is falling terror. You know, this could be a license to discriminate and on the right would have been, you know, this is a massive attack on our religious freedoms. And because the decision was neither, it was difficult to fit in, as we discussed. But I also think, you know, the fact that the fact that this very simple case wound up getting all the way to the Supreme Court and then wound up getting decided in favor of the baker in a narrow way, nonetheless was very disturbing, and rightly so to LGBTQ rights groups, because, again, what the commissioner said was not really that hostile toward religion. And the court did seem to grant this special solicitude to anti gay Baker in a way that I think riled up a lot of progressive groups and made them think, you know, there are two different people's dignities on the line or two different kinds of dignity on the line. You have the dignity of the baker who wants to be able to turn away gay couples, and you have the dignity of gay people and the dignity of the couple here who wanted to just be served equally like anybody else. And I think. And a lot of people think that the court didn't pay a lot of attention to the dignity of the gay couple. Kennedy's opinion does say it's perfectly acceptable for the state to protect gay people's dignity, to grant them equal access to the marketplace. But once again, he seems to have a special kind of solicitude for the baker that he does not extend to the gay couple here. You can almost imagine him saying, well, they should have just gone somewhere else. And that is disturbing because that strays far from the core of civil rights law, of non discrimination law, which is all about saying, no, you know what? They shouldn't have had to go somewhere else. They should have been able to walk into any business and get equal treatment without regard to their identity. And they did not receive that. Even though it's a compromise, even though it's basically a punt, it still feels like there's something kind of rotten here. And that gives gay people and LGBTQ people reason for pause.
- [19:22]
Host (possibly Dahlia Lithwick)
And this case really is a collision of these cherished values that Anthony Kennedy wants to be a champion of gay rights. He wrote Obergefell. He wants to be, I think we all say, on the right side of history on that question. But he also wants to be a champion of the dignitary interests of religious dissenters, or maybe just Christian cake baking religious dissenters. And that some wag pointed out on Monday when the decision came down, he just wants to make sure his obituary doesn't say that he undermined one of those two values. I Mean, he. Presumably by the time another iteration of this case comes up to the Court, he doesn't have to decide it. Am I being cynical, or did he just punt in some way so that he can be the champion of all of these values without ever really fully picking a side?
- [20:11]
Mark Joseph Stern
I think you're right, in part. He clearly didn't want to take this case. Remember, it ended up getting relisted over and over again before Justice Gorsuch was confirmed to the Court, which indicates that there were not the necessary four votes for the Court to actually take the case. And then when Gorsuch joined the court, that fourth vote materialized. So I don't think Kennedy wanted it before him in the first place. I don't think he wanted to decide this. I think you're right that he decided it narrowly so he could sort of appease both sides and protect his legacy from accusations of anti gay bias, of undermining gay rights rights, the structure of LGBTQ rights that he himself helped build. But I also think he's not going to be successful in dodging the issue for very long because there is already another case like this on the Court's docket, and that is Arlene's Flowers. And it's a similar case with no escape hatch of potentially anti religious commissioners. Arlene's Flowers is a clean vehicle, as they say. It is really the case that the Court should have taken instead of Masterpiece Cakeshop. And perhaps they'll just kick the case back down, but it'll end up coming back up to them soon. And there are other cases like this boiling up from the lower courts. The ADF has basically rooted their strategy in bringing these cases to scotus. So if he thought he could just punt forever and keep this issue off the docket for the rest of his tenure, I think he's probably dead wrong.
- [21:43]
Host (possibly Dahlia Lithwick)
Mark, you sound like you are absolutely convinced that Justice Kennedy will be on the bench in October. I know I get a lot of very anxious phone calls about that. Are you absolutely convinced that Justice Kennedy is not stepping down this month?
- [21:57]
Mark Joseph Stern
Yeah, I think so. I think he's gonna stay on the Court for at least one more term. We know he's hired his clerks, he's hired all of them. He seems to still enjoy his job. He's engaged, he's still the decider. He gets to cast that deciding vote and pretty much all of the remaining blockbuster cases this term. I don't see him slowing down. I think Joan Biskubic wrote a fantastic piece listing some clues that he isn't Retiring. And the main takeaway is that he's still having fun. He has the best job in the world. Come on. Who wouldn't want to be Tony Kennedy right now? He's not gonna step down just because he's getting a little old, a little long in the toot. He's been long in the tooth for a decade. He's in his 80s, and he's still up there doing the job. So I'm not too worried. I think we've got at least another year of public service out of the man.
- [22:44]
Host (possibly Dahlia Lithwick)
So now I have to ask you to think through with me the fact that Justices Breyer and Kagan join him in this merry journey to find some pointillist solution in this case that won't upset anybody too badly. A lot of folks were shocked and horrified that only Justices Ginsburg and Sotomayor dissented. My view is this was just completely tactical and strategic. Do you disagree?
- [23:17]
Mark Joseph Stern
Oh, I agree. I think that if there were five votes to just shoot down this case and say Baker loses, I think Kagan and Breyer would have voted that way for sure. But there weren't. And so they had to vote the most tactical way possible. And they decided, I think correctly, that if they could lend their votes to Kennedy's opinion, that perhaps they could limit the opinion in some ways. Maybe there was some language that ended up getting dropped. And they also provided a backstop, provided some real support for the parts of the opinion that express this sort of flowery love and dignity and civility for gay people. There are, you know, various parts of the opinion that reiterate and reaffirm Obergefell and Windsor, that reiterate the constitutional dignity of LGBTQ people. And Kagan and Breyer definitely wanted to sign onto that and give their colleagues some support for him sticking that in an opinion that ends up ruling against a gay couple. So I think it was a smart tactical move. I also think that they were interested in engaging on this side issue that ended up being a battle between Gorsuch and Kagan about this troll who went to three different bakeries in Colorado and asked them to make cakes with anti gay text and images on them. You know, this was an interesting facet of the case because there's been a lot of debate, well, does it matter if the cake is just a cake or if the cake has writing on it? Is that a First Amendment dividing line? And Gorsuch said it was. Kagan and Breyer said it wasn't. And Kennedy's opinion didn't. She doesn't really decide either way. And I think by signing on, they probably helped Kennedy step away from that issue, keep the opinion on the course. That just said what this commissioner said is bad. Yes, there's this other stuff going on in the background, but like so much else, we're not gonna decide that today.
- [25:10]
Host (possibly Dahlia Lithwick)
And what about the argument that I put some credence into, the argument that because this is so rooted in the religious animus, the comments made by the commissioner, that there's a through line here that's really obvious that goes to the travel ban cases and that says that if you're going to really give force to the idea that we take people's words seriously and if people say they hate other religions or, you know, whatever they are saying, that that matters and that that is something that Kagan and Breyer are banking on, Kennedy maybe moving toward their worldview on that question in the Muslim ban case.
- [25:55]
Mark Joseph Stern
Well, unfortunately, I think that may be wishful thinking. It's certainly possible. We don't know what's going on behind the scenes, but it seems to me that the Muslim ban case just involves totally different government officials, namely the President of the United States States. And I think that Justice Kennedy is much more wary of accusing the commander in chief of anti religious animus than he is of accusing these nobody Colorado commissioners of anti religious animus. It's very easy for him to say, oh, well, you commissioners, you're just naughty, naughty boys. You shouldn't have said any of this nonsense. Much more difficult for him to, you know, look across the mall at the White House and say, you, President Trump, you hate Muslims. It seems a difference of not constitutional magnitude. I mean, I definitely agree that there should be a consistency here, but within the magical jurisprudence of Tony Kennedy, I think that is a distinction that he himself will draw.
- [26:56]
Host (possibly Dahlia Lithwick)
And so all the op eds that said, hey, the President just lost the travel ban case on the strength of this, that's just special pleading to Justice Kennedy.
- [27:07]
Mark Joseph Stern
Right, of course. It's a Dear Tony letter. It's wishful thinking.
- [27:13]
Host (possibly Dahlia Lithwick)
God, we should just write them in the form of amicus briefs. Right? It would save a lot of print. Okay. You also wrote about the other kind of big blockbuster, which was in the undocumented minor abortion case that the court also acted on on Monday. This is when everybody was watching and I think we all missed it because we were looking at the many layers, pardon, the p. Of the masterpiece cake case. Can you talk for a minute about the action that the court took with regard to these undocumented minors in Texas.
- [27:48]
Mark Joseph Stern
Yeah. This was, I think, a much cleaner punt and a much more satisfying one. So of course the Trump administration has tried to prevent these undocumented minors from terminating their pregnancies. The American Civil Liberties Union has done just heroic work representing these minors. And last, last fall, the ACLU won a favorable decision in the D.C. circuit allowing their client to get an abortion. They promptly secured that abortion for their client, which was doing their duty to their clients. And the Justice Department turned around and asked the Supreme Court to punish the ACLU for helping their client get this abortion. The doj, they claimed totally, uncredibly and plausibly. I mean, this was just an egregious falsehood that the ACLU had made material misrepresentations to the DOJ that the ACLU had promised it would wait before helping this young girl get an abortion. That was not true. But it's very frightening if you're a lawyer to have the Justice Department asking the Supreme Court to sanction you. Luckily, luckily, on Monday, the Supreme Court declined to do that. It sort of swatted away that request. The court ended up vacating the lower court's decision with regard to this one particular minor because she had already gotten what she wanted. That is standard operating procedure. It does not bear on the merits of the case at all. And the court said, look, doj, we're just not going to do it. We're not going to punish these ACLU lawyers. Lawyers, we're not even going to wade into it. We're just dismissing this case because we don't want to deal with it and we don't want to deal with your bs. And that was unanimous. There were no concurring opinions, no dissenting opinions. The whole court was behind it. And I thought that was a very elegant compromise, a very nice way to not necessarily show the ACLU that the Court has its back, but to show the doj, we're not going to play these games with you. You may hate the aclu, but we're not gonna turn that into an issue of legal ethics because they were just doing their job.
- [29:56]
Host (possibly Dahlia Lithwick)
And is this of a piece you had said at the beginning when we were talking about Masterpiece, that your view is that the Court. Part of the reason that the Court comes to this elegant, narrow compromise is cuz there's big stuff to come. Is this of a piece with that that the court is just not gonna take sides on an incredible hot button issue around abortion if it doesn't have to, because there's other big stuff to come?
- [30:19]
Mark Joseph Stern
Yeah, of course. I mean, look, we've got the trav. Big labor rulings, unions, huge free speech, more free religion, free exercise of religion cases. We've got everything coming down the pipeline. It's gonna be an onslaught. And the court does not want to deal with this extremely fraught, undocumented minor abortion case. I mean, that's like dynamite for this court. So they said, instead of dealing with it, we're gonna defuse the bomb. It's gonna come back to them because a lower court has prohibited the Trump administration from blocking these minors access to abortion. And that ruling is still in place. So the court will get a second bite at the apple later on. But June 2018 is really not the time for the justices to wade into this mess.
- [31:04]
Host (possibly Dahlia Lithwick)
The only thing you didn't mention in that list, I think, was vote purges and gerrymandering two times. Yeah, those are coming too. Well, that's just kill me now. Don't worry, I'll start carbo loading. Start carbo loading. It's going to be a long month. What, if anything, is going to surprise us in the coming weeks? Do you know, I think there's a.
- [31:26]
Mark Joseph Stern
Chance that gerrymandering could surprise us. I think it's going to be interesting to see what the court does.
- [31:31]
Host (possibly Dahlia Lithwick)
Surprise us. Which way? Surprise us.
- [31:33]
Mark Joseph Stern
Surprise us in a good way. I'm still holding out hope because they've had. They have these two cases. They've been holding on to one of them since October. They're making moves behind the scenes. And I think Roberts has this appetite for compromise, and I think he probably does recognize the very serious free association issue at the core of these gerrymandering lawsuits. So I think there is a real chance that Roberts could join Kennedy and the liberals in making the first step toward reining in partisan gerrymandering. But I would not put a dollar on that. I could be absolutely wrong and I could have my heart broken because that too happens every June.
- [32:09]
Host (possibly Dahlia Lithwick)
Mark, thank you so, so much for joining me us this week on the podcast and for your extraordinary work this end of term. Thank you for being here.
- [32:18]
Mark Joseph Stern
Thank you so much. Always a pleasure.
- [32:21]
Host (possibly Dahlia Lithwick)
And now, because I like you, I want to share a little pro tip. If you join our membership program, Slate plus, you can enjoy this and all of Slate's podcasts ad free and you'll be supporting our work at the very same time. This is Win Win. There is a free trial to be found@slateplus.com amicus. Don't forget, you're also supporting Slate's journalism And we thank you. Now back to the show. We are going to zoom way back. Now. We've talked about this week at the Court. I wanted to talk about the big stuff that we don't always talk about on this show. And by big stuff, I actually don't mean 2016 and the election and Donald Trump. I mean the big, big stuff and how religion and faith have shaped our moral understanding of the law and the Constitution. I continue to believe that if we don't think through that question, we're going to continue to fight the kinds of fights that Mark and I were just describing today. And so to do this, I've invited somebody that I have to confess I've just wanted on the show. Even if I were the only listener to the show, I would have invited him. And that is one of my heroes, Reverend Dr. William J. Barber II. His storied history with North Carolina's Moral Mondays campaign and then his work as president of Repairs of the Breach have more or less made him somebody who, whenever I can't quite figure out what I want the Constitution to mean to me, I listen to something he said and I feel a little bit better. Dr. Barber is CO chairman of the Poor People's Campaign, which has just relaunched. It is the 50th anniversary of Doug Dr. King's Poor People's Campaign, and he is also the author of the Third Reconstruction. So it is with tremendous gratitude and humility that I say, Dr. Barber, welcome to Amicus.
- [34:25]
Reverend Dr. William J. Barber II
Thank you so much. I'm so glad to be here with you on today.
- [34:28]
Host (possibly Dahlia Lithwick)
So I think I want to start exactly where I just began with the introduction, which is that you're not a lawyer. You're always at great pains to, to reassure people that you're not a lawyer. Although I did read recently that you had wanted to be a civil rights lawyer. And I say all that because despite the fact that you're not a lawyer, you always, every time I've heard you speak on poverty, on immigration, on a living wage, on health care, LGBTQ rights, women's rights, you, you unerringly try to draw a line between the Bible and to natural law and then onto the Constitution guarantees of equality and justice for all. And I guess I'm asking you to share with my listeners who are not maybe necessarily used to hearing Reverend Dr. Barber talk about the Constitution, what the connection is in your mind between your own work in social justice and faith and their project or their interest in constitutional integrity and repair.
- [35:35]
Reverend Dr. William J. Barber II
When you look at what is happening over the last year and a Half. And how these movements of today connecting to the streams of movements yesterday. What people are really saying is something is out of order with our moral narrative in this country. And that moral narrative flows from two places for me. One is the deep moral narrative of the Constitution that says when a politician or power broker puts their hand on the Bible and swears to uphold the Constitution, they are in essence saying, number one, any policy we pass will be considerate of the we, not the I. It will not be the policy of seclusion, but the policies that will help the whole. It's the good of the whole, not the good of the few. Number two, they are saying that their first goal will be to ensure domestic tranquility, not domestic division. They also are saying that their policies will establish justice, will provide for the common defense, and promote the general welfare. Well, why we're seeing so much activism in this moment is because I believe when you look at policies through that moral lens and look at the extremism that's happening in state capitals, happening with Ryan and McConnell and the Congress and certainly with Trump, you are seeing actually a violation of the first fundamental moral principles of our Constitution. When you add to that our deepest moral and religious traditions, whether it's Judaism, Christianity, ISL or others, all those traditions basically say that the first goal of faith in the public square and the first goal of public policy should be to care for the poor, the sick, the hurting, the least of these, the stranger, the immigrant, the undocumented, and those on the margin. In fact, 2,600 years ago, one prophet named Isaiah said, woe unto those and listen to this language. Who legislate evil. That's actually a scripture. Who legislate evil, and then it says, and robs the poor of their rights and makes women and children their prey. So there's this sense that we have the poor have rights and certain fundamental human rights. And again, as you see this activism, you look at the Poor People's Campaign, a national call for moral revival. We are seeing that when you audit this country empirically, look at where we are now. 140 million people in poverty, low wealth, 37 million people without health care, 50,000 people dying every year from low wealth, 4 million families that do not have access to water. Without lead, they can buy unleaded gas, can't buy unleaded water. And the millions and billions of dollars we put in the war economy and the small amount we put in public education, infrastructure, and health care, we are in violation. We are violating our deepest constitutional moral values and our deepest religious Moral values. And that's why you're seeing this moral activism, moral dissent beginning to rise and rise and rise, and it's going to continue because if not, our democracy is in deep trouble.
- [38:41]
Host (possibly Dahlia Lithwick)
And can you answer? I know this is a question you're asked every day, but answer for me why it is that the left has ceded the language not just of faith and the faith that you've just described, but also the language of the Constitution, Why this became so utterly appropriated by one side in the discourse, and why it feels like we're clawing our way back to saying, no, no, the Constitution actually promises dignity and equality and justice. Those are liberal values. How did we just lose the thread on having this be a progressive notion in the first instance?
- [39:21]
Reverend Dr. William J. Barber II
You know, that's the $1 million question. I do not know why we would cede, for instance, being afraid of the word liberal when liberty is at the core of our country's character. I don't know why in the world we would cede words like welfare when the general welfare is in the Constitution. But what I do know is the language of left versus right is too small and too puny for the moment we're in. Now I truly believe, Dyer, that we're in a third reconstruction. You know, the first reconstruction, 1868 to the 1890s, fundamentally changed this country. It brought us voting rights, brought us the 13th, 14th, and 15th amendment right to vote. It brought us new civil rights laws. And then it was a reaction to that called the Redemption movement. That is, we have to make America great again. That was in the 1800s. And then in this 1950s to the 1960s, you had this second reconstruction, and you had the movement, the civil rights movement. You had the anti war movement. You had black and white and brown people coming together, this fusion coalition, fundamentally changing the country, beating back Jim Crow, Crow. And that movement was assassinated and killed. But then you had the reaction of the Southern Strategy by Richard Nixon, Kevin Phillips, that basically said their goal was to hijack the moral arguments to pit black and white and brown people against each other, particularly in the south and the Rust Belts and the Midwest, in order to undermine the fusion politics that could transform the nation. I don't know why. I know it was wrong. I know we shouldn't. I know that we should never allow this kind of religious nationalism that suggested if you're anti gay, anti abortion, pro prayer in the school, pro tax cuts, pro guns, then somehow you are advocating a moral and religious position. It has to be challenged. And people of faith and deep commitment have to challenge it. We should never allow. For instance, Paul Ryan and McConnell have blocked fixing the Voting Rights Act Act. If you think about it, it was gutted in 2013. For now, more than 1700 days, they have refused to fix the Voting Rights Act. We're headed into our third election without the full protection of the Voting Rights Act. That should alarm Everybody. We've had 23 states pass voter suppression laws. Millions of people's votes have been suppressed. That is the hacking of our system. That is greater than anything we know about Russia because we don't know what Russia did yet. But we do know what RAC voter suppression did. That's a fundamental violation of the 15th amendment. It is immoral. We should not be talking about this in terms of left versus right, but in terms of the deep moral center and that poverty, systemic racism, ecological devastation, the war economy, militarism, and the false forms of religious nationalism are not only wrong, but immoral. And I think we have to loose ourselves from this mere left right conversation. So giving people health care should not be a left issue, a right issue. It's a right or wrong issue. It's a moral issue. Providing people a living wage, the 62 million people who work every day without a living wage is not left or right. It's a right or wrong issue. It's a moral issue addressing the 140 million people that are poor and low wealth, the 13 million children, when, as Mary Wright Edelman says, we know if we just took 2 to 3% of our federal budget and spent it on programs that work, we could end child poverty tomorrow. That's not a left or right issue. That's a moral issue about right versus wrong. We have to begin to have a new moral imagination in order to have moral implementation. And it's time that we recapture the language of the Constitution and our deepest moral values, but without any hesitation and without any backing up from it. We cannot let this moral conversation be dismissed. And lastly, I know I'm being a little long, but lastly, go back and look at any progressive achievement that we hold true today. Right for women to vote, Social Security, Medicaid, Medicare, any of those. The Civil Rights movement. You cannot find an achievement over the last hundred years that did not have at its center some deep moral call. And 100 years ago, most of the things we hold dear today were seen as impossible. But there was a deep moral call before the nation moved. There was a remnant of people that said, no, this is not about politics. This is about something much deeper, the moral politics. And it's wrong and we're going to fight to change it.
- [44:08]
Host (possibly Dahlia Lithwick)
So, Reverend Barber, I have to confess to you that a couple years ago I packed my kids up from Charlottesville and drove to hear you preach on one of the Moral Mondays, one of the big, big ones, at that point when there were lots and lots of folks coming out. But I think you made a point then that you're making now, and it has to do with getting out of our silos. Even as amongst ourselves, we're very good at organizing around the environment, but nothing else. Around women's rights, around unions, but nothing else. And I think this fusion politics that you're talking about, where women, we stop having these intramural battles and we work in the same direction, is something that feels revolutionary to me. Do you find that people are beginning to understand that, or are we still just far too happy bickering with one another about who's pro choice enough?
- [45:01]
Reverend Dr. William J. Barber II
Well, I think that people are beginning to get I've traveled to more than 40 states around the country with my co chair, Reverend Dr. Liz the O', Hara, and we now have actions happening all over the country and in D.C. simultaneous actions. And when we got into rooms and started saying to people, look, there are these five interlocking injustices, systemic racism, particularly viewed through the lens of voter suppression, a systemic poverty, ecological devastation, a war economy, and this false modern narrative, people said, aha. When we showed them maps that showed them that every state that suppressed the vote also had high poverty and low wages and resistance to expanding health care, and that every state that had voter suppression, the persons that got elected through voter suppression were white. But once they got in office, they passed legislation that hurt mostly white people because the majority of poor people are white women, women, children, the disabled and the working poor. People began to say, wait a minute, that means then black people and brown people can't be over here fighting against voter suppression as though it's a race issue alone, while we're over here fighting against poverty, while we're over here fighting against the environment. Because if in every state where there has been voter suppression, and even in the US Congress, every congressperson that has refused to restore the Voting Rights act, which is a form of systemic racism, those persons also are bad on immigration law, they're bad on protecting the environment, they are regressive when it comes to public education, they're regressive when it comes to union rights and labor rights, then there is this intersectionality, this fusion, and people are starting to see it the more that we talk about it it does not mean you do not have your silo. It means you recognize that your silo is not enough. It does not mean that you do not have your march. But it does recognize you have to have a movement and not just a march. And we have to recognize that there's so much energy spent to divide us. And if we weren't powerful together, that energy would not be spent. In 1965, at the end of the Selma to Montgomery march, many people never read Dr. King's speech there. He talked about how every time there was the possibility of black and white, poor and working poor people coming together in the south for electoral possibility and to change the system. The extremists, he called them, the bourbon class. But the extremists and white supremacists always did whatever they had to do to divide that coalition. He understood then that fusion politics has been the way we've always won. People say it's revolutionary, but you remember I mentioned the Reconstruction movement? How did that happen? Happened? Black and white fusion politics. Former slaves, former free blacks and poor white people came together in the south. And inside of three years after the Civil War, they took over every general assembly legislature in the South. The civil rights movement, fusion coalition, the women's suffrage movement. People forget that Frederick Douglass was out there with Sojourner Truth, with Lucretia Mott, who was a Quaker. We have to remember our history. We know how to beat extremism. And lastly, we ought to recognize that when the forces of extremism suppress the vote, put $10 billion or more of pornographic sums of money into the election, they create through an unholy alliance between the Supreme Court and big business, what I call the bastard child of citizens United States. It. When we continue to see people even willing to go to Russia and get help when they suppress the vote, that is not a sign that progressives are weak. That's a sign of our strength. Because nobody would spend that much energy fighting us, that much money fighting us, that much effort dividing us, if we were not powerful. We have to understand now our power connected. As Dr. King said, we'll either learn to come together as brothers and sisters, or we'll perish together as fools.
- [49:21]
Host (possibly Dahlia Lithwick)
So now I have to ask you a Supreme Court question, if I can. And that is this, this term. We've talked on this show so much about religious objectors, about moral conscience. Objectors, people of faith, I think good faith, people of faith, in some cases cake bakers who object to same sex marriage, they don't want to bake a cake Nuns with moral objections to birth control crisis pregnancy centers that don't want to tell patients about abortion. How do you make space? And how do we make space in a country that is built on these tenets of religious freedom and conscience? How do we make space for people who have good faith objections to the legal architecture of equal protection, of equal, equal treatment and equal dignity? How do we hold them and their values while trying to have public accommodations that protect everyone?
- [50:17]
Reverend Dr. William J. Barber II
Well, I have to look at this two ways. First, theologically, many of the people that claim that as a matter of faith we are called to be against gay people and to hate gay people, I have to lovingly say that's not biblical, particularly when Christians say that, because there's no scripture where Jesus told us to hate and to push people away. There's just not. In fact, when Jesus healed, he never gave people a sex test or he never gave people a class test. When he fed 5,000, he never said, everybody but the gay people. When the Holy Spirit fell on Pentecost, Jesus never said, okay, everybody can get it. Excep somebody who may have had an abortion. So first of all, what we see happening is we've had a real hijacking of faith. And then people want to claim that I'm doing this because of my Christian values. So theologically, I want to say, wait a minute. Our Christian values tell us to love everybody and embrace everybody. There's a scripture that says, God lets the sun shine on the just and the unjust. Now, that leads me to the constitutional principle. You can have your individual position that you do not like William Barber because he wears a purple shirt, but you can't deny us equal protection under the law. And that's the problem that I have with those who want to hold public positions, but then use public positions to deny equal protection under the law. No. Now, again, I'm not a lawyer, Diane. I'm not a lawyer, but my understanding is that's what we said when we fought the battle over public accommodation and bus drivers and other folk who said for religious reasons, they didn't believe black folk ought to sit in the front of the bus. And the court said, well, you can have that opinion all day long, half the night, if you want to, but you can't do that on this bus. You can't bring that opinion into public accommodation. You can't be paid by the citizens tax dollars and then implement your private beliefs. So first, theologically, I disagree with a lot of folk who attempt to say they are engaging in a Christian position when they're against people and they want to deny people who are gay or deny people who don't pray in school or deny people who. People who have an abortion. Because the primary thing that our deepest religious tradition, particularly how this Christian tells us to be concerned about, is treating the poor right and treating the sick right. If they really wanted to protest something, they would be protesting the denial of healthcare because that is unchristian. They would be protesting the denial of living wages because that is in fact, fact non Christian, non religious. It is an affront to our deepest religious values. But on the legal standpoint, you can have your opinion. It's just like you can keep whoever you want out of your private house, but you cannot run a business that uses public facilities, public roads, public this, public that, and then discriminate. That's settled law. Law, in my opinion. And so if somebody doesn't want to serve the public, then they have a right not to do it, but they don't have a right to use a public position and not do it. Anybody. I believe that claims a position because I have this. I do not agree with same sex marriage. I do not agree with the gay community, and therefore I'm going to deny them. As a African American with Indian descent, I have to say, stop for a moment and listen to. That was the same argument of the segregationist. That was the same argument. And we said, in this country, you can be a racist if you want to personally, but you cannot use public positions to implement your racism. Because that's what really racism is, when you use power to implement your bigotry. That's why Dr. King said, the law may not make you like me, but the law may keep you from lynching me.
- [54:54]
Host (possibly Dahlia Lithwick)
Reverend BARBARA I have one last question and I think I want to ask it because I get so much mail from people who say, I'm tired. I'm tired of the tweets, I'm tired of the lying. I'm tired of my job being to track all this craziness. And I think we're losing. And you have just relaunched, as you said, Dr. King's poor people People's campaign. Folks are getting arrested on the streets again. What do you tell our listeners who are just beginning to feel that the rule of law has slipped away and that we are on a kind of 24 hour crazy reality show of lawless norm erosion and they don't know what to do? What do you tell them? What's the answer? How do you both keep aware of what's going on and be educated and engaged. And also keep your sanity when it feels as though this program may never, ever end.
- [55:53]
Reverend Dr. William J. Barber II
Well, I would tell them first of all to go to WW Breach repairers and look at some of the testimonies of people who are fighting back or to the poorpeoplescampaign.org People who are fighting back. And I would say, before you want to quit, talked to the sister I met in Washington state who lived in a homeless camp in Grays harbor, who came to a mass meeting and said, I am the white trash that America threw out but forgot to burn. I'm joining the Poor People's Campaign. Or go with me to the two coal miners in Harlan, Kentucky, one black and one white, who told me the real story about what has happened to the them and how the union was undermined and talked to them about why they are joining the Poor People's Campaign, one with black lung and says because of that, that's the reason he can never stop fighting against racism and against those that would block health care. Or meet Cali Greer from Alabama whose daughter died in her arms because Alabama governor and legislature refused to expand Medicaid. And she's on the front line fighting back and saying, we have to turn our pain into power. We have to cry until we're heard. Or go and meet another lady I met who was jipped by predatory lenders in the south, forced to pay $120,000 for a single wide trailer that's now falling apart and full of mold. Her child, 11 year old, has developed breathing disorders from the mold and now has to wear a CPAC machine. She herself is disabled, but she said, I want you to come in my house and show America what poor people are going through and I'm willing to join and to fight back. Or meet the lady down in El Paso. The mother who had not seen her husband and children for 16 years. She fought with border control until she finally said to them, where is it that I can go and at least touch my husband without it being illegal? And they said, if you walk into the middle of the Rio Grande river from the United States side and he walks from the Mexico side, we'll give you three minutes in the middle of the river. And she led us into the river with garbage bags on our legs. We walked in there, we touched her husband and her son she hadn't seen for six years. And she's organizing and committed. I would say first you need to focus on the faces of the people who've not had to fight over the last year, but have had to fight a long time. Communities that look like today the civil rights movement never happened. The war and poverty never happened happen. Secondly, I would say remember to focus on the history that has brought us here. You know, sometimes you look you in a moment and you forget the moments behind you. Tired. What about the slaves that battled for 250 years? What about the abolitionists who were locked up Like William Lloyd Garrison who was locked up in Boston for preaching the damnable gospel that all people equal. Thoreau, who when he was asked would he repent for his civil disobedience, he said, the only thing I will repent of is for not asking sooner. What devil possessed me so long to be quiet. So long. Think about the people who fought against lynching. Ida B. Wells oftentimes went to challenge lynchings and to speak out against only eight people. Remember that the Selma marches and the civil rights movement didn't start with a half a million people, but 50 people. Some, sometimes 40 people. Sometimes we have to focus on the history of the past in order to face the moment of the present. And then lastly we ought to. For me, as a person of faith, I have to go deep into my faith. That says the time to have moral dissent and moral action and moral activism is when the moments are the roughest. It is when it looks like the odds are against you that a remnant has to stand up, up and speak out. We are in a moment of necessity, a moment that says, as a scripture that Dr. King used to use in Hebrews, chapter 10, it says, we are not of those who shrink back unto destruction, but we are those who persevere unto the salvation of the soul. For faith is the substance of things hoped for, the evidence of things not seen. I would say, how can we not keep fighting? Particularly when those who fought to win in the past, they had less than we have now. Now they didn't have the radio station, they didn't have the Twitter, the tweet, the email. They didn't have the cell phones. They didn't have the education. But they fought. I was reading last night about Mr. Spees who was hung for fighting for an eight hour workday in the 1800s. And he said, when he was being hung, he said, you might put this, try to put this out today, but there is a fire underneath. There's a subterranean fire of resistance that's bubbling up. My answer to people would be, if we claim to be the children of Martin and Mega and Dorothy Day and Lacrida Mott and all of the great freedom fighters, if we are their descendants then standing down is not an option. We lose only when we get quiet it. We lose only when we stop fighting. We must declare that somebody's hurting the people and we will not be silent anymore. And that is why the time to be a movement is when movements are necessary. And a deep moral movement, anti racist, anti poverty, deeply moral, deeply transformative fusion movement is necessary right now. And there's nobody else that's going to do it. All of our heroes and sheroes, they are not getting up out of the grave, but they are cheering us from the balconies of heaven, I believe, and saying it's time for us to run. It's time for us to do our part. I would rather die having tried and see nothing change than to live, not try and see nothing change. The reality is this is the time we have to get a second win. We have to gird up our strength. And we have to remember by focusing on the faces of today that are fighting, focusing on the histories and the battles of the past when people fought and whatever gives you faith, it's time to gird it up. Not for the Democratic Party, not for the Republican Party, but for the salvation and the soul of this democracy.
- [62:49]
Host (possibly Dahlia Lithwick)
The Reverend Dr. William J. Barber is president of Repairs of the Breach. He is co chairman of the Poor People's Campaign that has just launched massive acts of resistance around the country. I guess I want to say he's also been my personal Chief justice for the last couple of years.
- [63:09]
Reverend Dr. William J. Barber II
Years.
- [63:10]
Host (possibly Dahlia Lithwick)
And Reverend Barber, I think on a show that tends to be very, very high minded and often philosophical on constitutional issues. I thank you for sharing what you call evidence of things not seen with my listeners today. Thank you for joining us.
- [63:29]
Reverend Dr. William J. Barber II
Thank you so much. And let me say one last thing to you. Thank you for all you do. I want your listeners to read the closing arguments of Thurgood Marshall in the Brown case and the dissen that Justice Ruth Bader Ginsburg did when they gutted the Voting Rights Act. And they actually sounded like preachers. They actually sounded like theologians at the end. And then join us on June 23rd in D.C. for the Mass Call to Action rally that we're having. Not to conclude the Poor People's Campaign, but the last step in the launching of a multi year Poor People's Campaign, a national call for a moral revival. June 23rd to 10:00 clock in Washington D.C. join us. God bless you.
- [64:11]
Host (possibly Dahlia Lithwick)
God bless you. Reverend Barbara thank you. And that wraps it up for this rather epic I recognize edition of Amicus thank you so very much for listening. If you would like to get in touch with us, our email, as ever, is amicuslate.com and you can open always. Find us@facebook.com amicus podcast and we really do appreciate your letters and your feedback and your thoughts. Today's show was produced by Sara Burningham. Steve Lichti is our executive producer and June Thomas is senior managing producer of Slate Podcasts. We will be back with you as things heat up at the court with another episode of Amicus in two weeks.