Discrimination is NOT Religious Freedom with Alison Gill

Doug Berger 0:45
Joining us today is Alison Gill. She is Vice President legal and policy with American Atheists. She manages the group’s federal and state advocacy for religious equality and litigation activities to protect the separation of religion and government. Allison is a nationally recognized expert on civil rights law and state advocacy. Thank you for joining us today, Alison.

Alison Gill 1:07
Absolutely. Thank you so much for having me.

Doug Berger 1:09
And did I get your last name? Right? It’s Gill. That’s right. Okay. Yeah, sometimes people like to say, Jill, or

Alison Gill 1:15
They do and the number of ‘L’s is often wrong, too, because I one in my first name and two in my last name. So it’s a perennial source of confusion.

Doug Berger 1:24
All right, and how long have you been with American Atheists?

Alison Gill 1:28
I started with American Atheists at the beginning of 2018. So, you know, coming up on four years,

Doug Berger 1:34
okay. And what made you decide to work at American Atheists?

Alison Gill 1:40
Well, I’ve always said, if I was going to do advocacy, I would like to work and one of three fields that I would consider really important. The first is LGBTQ advocacy. And I did that for many years of working at several different organizations, including the Human Rights Campaign. The second is secular advocacy. And the third is advocacy around, you know, student, Bill, a student reform of, you know, debt, because it’s really outrageous, and it’s harming, you know, younger, younger generations. And so, I saw this job, and I was looking for work, and I was a perfect fit. So I definitely applied.

Doug Berger 2:16
And why is separation of church and state important?

Alison Gill 2:21
Well, I think that goes, first of all, it’s separation. Church, and state is really a uniquely American invention in the first place. It’s something that’s pretty fundamental to the way that our democracy works, and the foundation of our system of government, and it was sort of an innovation of the founders. It’s pretty important, because it’s a response to the religious strife that we’ve seen caused, both in the early experiences in America, and before that in Europe, and you know, the 30 Years War and all sorts of different war caused by religion. It’s, I think, the framers of the Constitution really understood these harms, and understood what happens when you combine government with religion, how it harms both government and religion. And so it’s, it’s really critical to make sure that we are making these sorts of decisions independently of religion, governmental decisions independently of religion, and vice versa, that government is not having too much influence into religion. So there’s a whole variety of reasons why it’s important, and also has a really significant impact on the development of our civil rights.

Doug Berger 3:26
And so would you say that the United States there, this unique process of separation of church and state has actually been good for organized religion in this country is absolutely Europe.

Alison Gill 3:39
It has been and you just have to look at the participation rates, and America and religion versus those, you know, major countries that have state run religions like England, or, you know, Norway, for that matter, you know, they’re so much there’s so much more engagement with religion here, and also a greater variety, of religious engagement. So, from that aspect, it’s good for religion. You know, atheists might disagree, but it’s also good because it stops, you know, religious dogma from being sort of inculcated into the law. So it’s, it’s beneficial there as well.

Doug Berger 4:12
Okay. We’ve seen in recent news reports, the increase in the number of ‘Nones’, people who don’t participate in organized religion, most of them aren’t atheists. So why are the nones important to secular groups like American Atheists?

Alison Gill 4:28
Sure, and I do want to distinguish it’s a really important distinction between religiously unaffiliated people or Nones versus people that identify as secular non religious atheists, etc. You know, I think I tend to focus on the latter group, the people that actively identify as non religious people. We actually did a major survey called the US Secular Survey in 2019, where we surveyed about 34,000 non religious people across the country. And that data is available at secular survey.org We published a large report looking at these populations. And this is their look at secular populations, not people that are religiously unaffiliated, because they’re different. So you know, a lot of people that are religiously unaffiliated still say religion is very important to them, they still believe in like a deity. So I don’t think those are the same. And we tend not to focus on that as to why other groups might, I feel like there’s sometimes an interest in sort of bolstering your political standing by representing more people. But I think we’re pretty clear on who we represent. And it’s non religious people, atheists, such as atheists.

Doug Berger 5:40
For more information about any of the topics covered in this episode, check out our show notes at secularleft.us.

Doug Berger 5:54
And the reason why I had you come on today and invited you to come on today is to talk about the Do No Harm act that was introduced into Congress recently. And if passed, it will fix some of the issues that have come up since Congress passed the Religious Freedom Restoration Act, or RFRA. In 1993, what was the original intent of RFRA?

Alison Gill 6:15
Sure, so RFRA, I’m going to go into some legal issues here. RFRA comes out of a it’s a response by Congress to a previous Supreme Court decision called Employment Division v. Smith. And so Employment Division v. Smith, it was a case where a was about an unemployment provided by the government. So unemployment payments, and a Native American person who was basically fired from a job because they smoked peyote, in accordance with their beliefs. And basically the, you know, the government said, Well, this was, you know, a justified termination, and therefore, you’re not entitled to unemployment benefits, because you, you know, you broke the law, and you engage in this activity. And so their argument was, well, this is in accordance with my beliefs, and I should get, you know, there should be an exemption here because of not hurting anybody. And it’s just, this is a traditional religious practice. Okay, so the Supreme Court said, basically, that under the Free Exercise Clause of the First Amendment, that government can burden religion, religious exercise, so long as there is a you know, a, they’re trying to enforce a, a neutral law of general applicability. So as long as there’s a law that applies to everybody, and it’s not targeting religion, it applies to everybody, you know, nobody can smoke peyote, then it’s fine, even if it incidentally infringes on some people’s religious exercise or beliefs, and it’s, uh, you know, we support that decision. We think it was by Justice Scalia. It’s probably the one Justice Scalia decision, you’ll find most secular people very much in support of, but it is, you know, it ensures that everyone is treated equally. And it also sets brightline rules across the board. And Justice Scalia made the point that if the other if you do otherwise, if you make these exceptions, and every man is a law unto themselves, right, everybody gets the laws tailored around each person’s religious beliefs. However, at the same time, a lot of groups including some, you know, progressive groups, like the ACLU, and Americans United for Separation of Religion, and Governments, looked at the impact on the Native American practitioner in this case, and potentially other, you know, religious minorities and others, and thought that this, this solution of the Supreme Court was not appropriate, because it just not showing enough respect for minority religious positions. Now, American Atheists, and therefore they push forward RFRA. And I’ll talk about that in a second, the Religious Freedom Restoration Act, American Atheists has always opposed the Religious Freedom Restoration Act, we continue to oppose it to this day, and most of the other major secular groups do as well. It’s not something we supported. But groups like the ACLU and Americans United did support at the time. It’s one of the major reasons it did move forward. So what this does is it reverses the Employment Division v. Smith opinion and puts in place the old rule, which is basically, if the government burdens religious exercise, then they have to show that there’s a compelling governmental interest. And this is the least restrictive means possible in order to exercise that interest. So basically, it’s a very tough rule. This is actually called the strict scrutiny standard, and it is the most difficult rule to meet under constitutional law. So that means that the government when they this rule is placed on them, they’re going to lose more often than not. And therefore, religious exemptions will tend to be granted under this rule and what what the Religious Freedom Restoration Act is it puts that rule in place and applies it to all federal law. So it’s, it’s in effect creates religious exemptions all across the law and its intent might have been positive. But that’s not how it played out.

Doug Berger 10:08
And can you give some brief examples of how religious conservatives reverted the original intent of RFRA? Or why there’s a need for this Do No Harm act?

Alison Gill 10:21
I think the most glaring one of the most glaring examples is the Hobby Lobby decision, which came out I think, in 2014. And this is a case where, basically the, under the Affordable Care Act, they had a contraception mandate. So every insurance company was required to basically offer an offer contraception to employ, you know, as part of employer insurance packages. And however, religious organizations, including Hobby Lobby, which is not a nonprofit, it’s not like the Catholic Church or something. It’s a it’s a hobby store. So it is a private business. They said, Well, we’re religious, and we don’t want to have to offer insurance that has that offers abortion, and they claim that contraception is abortion, even though it’s factually not true, which is something else we can come to later. So they are scientifically and factually wrong about that. But that does not matter. Because the court has to accept their belief as being true. So regardless, the Supreme Court here said, well RFRA applies the Religious Freedom Restoration Act applies. And this is a, you know, this does not meet the strict scrutiny standard, you cannot impose this rule on Hobby Lobby. Notably, they also expand the religious exemption to a private business here. So they’re saying Hobby Lobby as a private business can have a religious exemption, that’s also an expansion in the law. Before that this was meant to apply to individuals and their religious rights, not to private entities, like Big businesses and their religious rights. Because conceptually, that makes very little sense. Like, I don’t know what’s key marks religion, right. But But regarding…

Doug Berger 12:12
I think, though, didn’t they like narrow it to had to be like a closely held company or something like? I mean, that’s what they said.

Alison Gill 12:19
That is what it says that is correct. Now, whether that’s how its interpreted is another question, because once you start to blur lines, it’s much easier to blur them further. But yes, they said it had to be a closely held corporation, which is it means it has to have the stock and ownership has to be held with a limited number of hands basically.

Doug Berger 12:39
So what is the Do No Harm act?

Alison Gill 12:42
Do No Harm Act is a response to the to the expansion, or the misapplication, let’s say, of the Religious Freedom Restoration Act, that basically it’s a very simple bill. It’s kind of a complex problem. It’s a simple bill. The bill says, If you’re going to grant religious exemptions under the Religious Freedom Restoration Act, you can’t do it in a way that harms third parties. And that’s it in a nutshell, now, it’s fair specifies some ways that it could harm third parties and says these are what’s not allowable, things like infringing with civil liberties, denying governmental benefits, undermining child labor laws, things like that. So it’s specific, but the goal and what the bill does overall is it prevents when you’re granting religious accommodations, the accommodations being granted from harming third parties, which is really the only reasonable rule under the Constitution. If you think about it. I mean, the entire point is of the the religion clauses the establishment clause and the exercise clause in the First Amendment is that the government supposed to be neutral towards religion, it’s supposed to be, you know, separate. And if you’re granting accommodations to religion that harm other people and enforcing them under the law, then that’s not neutral, that’s favoring those religious beliefs. So really, it should be understood that the third party burden principle and that’s what we’re calling third party burden because you’re harming third parties, that principle should be understood to be part of 1st amendment law.

Doug Berger 14:13
Now, if the Do No Harm Act were to come into law. And I believe it’s in the Senate now, and it was just recently introduced in the House.

Alison Gill 14:22
It was introduced in the House earlier this year in the Senate just last month,

Doug Berger 14:25
would it force a pastor to marry a same sex couple?

Alison Gill 14:29
No, no, no it

Doug Berger 14:32
and why why would that not be true?

Alison Gill 14:35
Well, there’s because there’s no rule requiring anybody to marry anybody under federal law and the religious, the religious, the Do No Harm act is about when the government imposed, it’s it’s kind of complex, but when the government imposes burdens, right? The religious group is saying, Well, this burden, you know, affects us negatively and therefore we should get an account limitation. And they do no harm act restricts accommodations, right? But if there is no rule in the first place that says that a pastor or priest has to marry people, then you don’t need either you don’t need a rule sort of exception. And you don’t need a accommodation limitation, right? Because there’s no rule that says that they need to marry anybody in the first place. And there never would be because it’s not allowable under the Free Exercise Clause of the Constitution, and nobody advocates for it. Nobody. I should take that back. I mean, there might be advocacy within our church for it. But that’s not us.

Doug Berger 15:37
That’s yeah, the government force it. No,

Alison Gill 15:40
absolutely not. And no one thinks the government should force that.

Doug Berger 15:46
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Doug Berger 16:14
Recently, the US Supreme Court, at least since their recent term, or maybe over the summer, they made a few decisions that involved religious freedom without holding a hearing. Some reports have called this a shadow docket. Yeah. How concerned should secular people be about the use of a shadow docket?

Alison Gill 16:34
It’s very concerning. And these decisions are very concerning. And it’s I’ll get into why it’s a little bit complex. But overall, under the Trump administration, and continuing into now, we’ve seen the court make more and more use of what’s you know what some legal scholars have called the shadow docket, which is basically means responses to emergency orders. Now, the Supreme Court always makes some responses to emergency orders, but they’ve increased greatly a number, and they’ve increased greatly in partisanship. So usually, it’s been like, you know, if it’s an easy decision, we’ll we’ll put a stop on something or make an easy decision and, you know, quickly fix things. And if it’s something that can be briefed and heard normally by the court, then we’ll do that, right. There’s no reason to make an emergency decision. In most cases, sometimes there is, but it’s rare. So here, we’re seeing a lot more emergency decisions, and they’re very much more partisan than before. And that’s why it’s concerning, because many of them have to do with religion. So at the beginning of the pandemic, right, we saw a number of governors and, you know, health departments in different states across the country impose orders around public gatherings, around social distancing, and masking in public spaces. So either closing public spaces or putting rules on them. And some of those made exceptions for religious religions, like religious gatherings, and some did not. And those that did not, and in few places have been challenged, saying that, well, you have to allow our the church to gather in person. And some cases like we don’t, we don’t want to have to follow these, these rules. They’re not necessary for us. So we see, we see all sorts of cases like that. But it’s remarkable that the Supreme Court has taken up a number of those cases now, before last September, the goal the court was much more deferential to to the states and said, Okay, well, the governor and the public health, people say this is this is an appropriate limitation, then we’re going to go with it. However, after the death of Justice Ginsburg, and the elevation of justice Barrett, the court did a 180 and is no longer deferential at all, at all, to public health, and basically has used some of these cases to define this new paradigm, where they say the rule is the same. The rule has been for a long time, you know, if there is a you cannot impose on religious organizations, a rule that is more burdensome than on equivalent or comparable secular organizations. So that’s the rule, it’s always been the rule. They’re saying, that’s still the rule. However, the definition of comparable secular organization has very much shifted. And it’s it’s now being applied sort of apples to oranges, sort of, sort of situations. Like, in one of the cases called Tandon. It was about gatherings in houses. So the rule in California said no more than three families can gather in a house because of the pandemic. And the you know, basically home churches wanting to be able to gather in violation of the rule. And that’s the rule for everybody, regardless if they’re a church or not, it’s completely neutral. But the court actually looked at like grocery stores and like liquor stores and says, Well, they can gather, even though it’s in totally different circumstance between gathering and place where there’s no ventilation or safety. restrictions for hours at a time and singing and such, versus running into a grocery store and getting food. Very, very different situation. But the Supreme Court through those Blurred Lines, and now it’s no one knows what’s happening.

Doug Berger 20:13
We had a case in Ohio here, where some sectarian schools sued to invalidate the school closure, public health order. And they wanted to be compared they, their argument was that we had a casino allowed to be open. So their school should be open. Right? And I’m like, what? Yeah, that is just it. Just I’m not a lawyer. And that sounds ridiculous.

Alison Gill 20:41
Yeah, well, I mean, even lawyers, they should be referring to public health officials. I mean, I don’t know for public health wise, if a casino is equivalent to a school, I’d betting it’s not because we’re there if you just have to think about the different risk factors involved, right. But that’s where we should be guided by the science. And what’s what its equivalent in risk? Not by I don’t know, I don’t even know how to how to differentiate what the Supreme Court is saying in these cases, because it’s just sort of what justices want to happen. And by the way, the court is chair like the deal with the shadow doctors, the court is cherry picking these cases from across the country. Like there’s no reason that case needs to go up on an emergency basis. That can be argued normally, before the court, it doesn’t need to be decided without full briefing without hearing from other parties without doing full fact findings in the middle of the night. I think that was made like the day before Thanksgiving or something like that. So it’s like, really, it’s just under the cover of darkness. They’re just changing all the rules around religious accommodations.

Doug Berger 21:39
Yeah. And and I think one of the concepts that I came up across, when I was taking a look at it, is they call it irreparable injury

Alison Gill 21:48
irreparable harm,

Doug Berger 21:50
Irreparable harm. And so in this article, as read, it said, the decision that allowed the Texas abortion law to stand gives you a sense of how the court thinks about irreparable injury. Yes, for believers denied the ability to congregate, no, for women prevented from obtaining abortions, right. And so, and that’s what gets me sometimes it makes me kind of angry, is that they’ll go out of their way to say religious people are harmed. Yeah, by having to stay home during a pandemic. But we’ll say secular people aren’t harmed when we have to drive by and support with tax dollars, a huge Latin cross on public land, or a 10 commandments monument monument. Yeah, we, we’ve lost so many of these cases, because the courts don’t appreciate the harm that these things do. Since they’re not like a physical harm. You know, they’re not locking us into a room forcing us to pray. But they’re making us feel like a second class citizen in our own government. Absolutely. And it just, it boggles my mind, and it makes me angry sometimes.

Alison Gill 22:56
Well, I mean, it’s sort of a Christian privilege mindset, right, where they’re only recognizing certain types of harm, and those harms are, of course, is supporting the, the broad majority religion, so they’re more able to recognize harms against people like themselves and against people that are that are different. And, you know, just as for a fair comparison, I think, you know, we’re talking about undue burden on things like abortion, and we’re talking about undue burden on things like, you know, religion, this is the same words, but think about how differently they are interpreted in those different circumstances. It’s pretty, pretty absurd.

Doug Berger 23:31
Yeah. And it’s like, is my understanding, you know, I come from I used to be a religious family. I used to be religious myself, can somebody really be irreparably harmed because they can’t meet in a church temporarily? Like, no, I was always told that God is omniscient, or whatever, and can see everything and hear everything, and I have to be in a building or else it doesn’t work. I

Alison Gill 23:57
I just Well, there’s there’s case law saying that any, you know, violation of constitutional rights in that way is an irreparable harm. And but of course, that’s applied selectively like everything else. Right.

Doug Berger 24:09
And And don’t get me wrong if the government tomorrow said we’re closing all the churches, I would be there fighting for the against that. Yes. This was like a temporary public health order that we knew was wasn’t going to last very long. I think the school closing by the time by the time the County Health Department declined to appeal it, because the order was going to expire by the time a court could hear it. So it would have been moot.

Alison Gill 24:41
Right. And in one of the cases the Cuomo case out of New York, the Supreme Court made a decision and don’t forget they cherry pick this case and pulled it out. This the rule was set to expire in two weeks. So or was that there might have been California I think New York might have already been expired and they’re worried about re in them. Just remember hosing it so

Doug Berger 25:00
yeah, they had had they had changed it already by the time it got to the court. Yeah.

Alison Gill 25:07
Right. Yeah. So I mean, that’s shows you it’s not urgent. But you know, it’s urgent because it’s Supreme Court wants to change the law. And they have. And now we’re sort of dealing with the implications of that, because like I said, these cases were not fully briefed, they were not fully interpreted that decision. They made several of these decisions in a row without any sort of full explanation on them, maybe maybe a paragraph of text that most which do not provide any clear guidance or rules for other courts. And then there was the tenant decision, which had a little bit more information. But still, it’s not clear how precedential that is, it’s not clear other case, other courts should apply the rules, or to public health officials how they should think about the rules. And that’s a real problem.

Doug Berger 25:47
Oh, and I was gonna ask you to about that Do No Harm Act. Would that undo that recent court case, I think from 2020, where people could sue federal officials individually for violating their right.

Alison Gill 26:03
Sure you’re talking about Tenzin V Tanveer. Right. And that is a case that was before the Supreme Court where basically, people could sue under the Religious Freedom Restoration Act when their rights are violated. So it allows them to sue government officials for damages. So money damages, and there was a question whether it’s possible under the Religious Freedom Restoration Act. So if the causes of action under the Religious Freedom Restoration Act are narrowed, then yes, that would narrow the ability to sue and get monetary funding. It does not reverse the case. But it does sort of limit the damage a little bit, if that makes sense. So that’s something to consider.

Doug Berger 26:46
Okay. Well, as we kind of wrap up our visit today, I wanted to know, is there anything else you would like to plug for American Atheists? Anything that’s coming up that you think that we should know about?

Alison Gill 26:57
Sure, well, there’s a few things I already plugged our US secular survey. That’s it secularsurvey.org, which is our data about non religious people, and was based off a huge survey we conducted a few years ago, we just released recently a brief on black non religious Americans. So it’s just a sub brief on that population before we did one on nonreligious young people, ages 18 to 24. And we’re going to be doing other briefs as well. So, you know, there’s not enough data about our population out there. So it’s a way to learn more about about us, and who we are. And, you know, the issues that not only just people face in the country, I would also say that we’re ramping up to get into the next state legislative session. And if you’d like to sign up for action, or to get involved, please go onto our website at atheist.org and sign up for alerts and know when something’s going on your state that you can help participate in. You know, we’re supporting some positive legislation all across the country, and we’re trying to stop the really bad stuff we’ve seen happening last few years. So either way your voice can be really important.

Doug Berger 27:59
All right, Alison I really thank you for your time today and and you’ve given us a lot of information that I think people need to know and, and I really enjoyed it. Thank you.

Alison Gill 28:09
Thank you.

Doug Berger 28:12
Thank you for listening to this episode. You can check out more information, including links to sources used in our show notes on our website at secular left.us. Secular left is hosted, written and produced by Doug Berger, and he is solely responsible for the content. Send us your comments, either using the contact form on the website or by sending us a note at comment at secular lab.us Our theme music is dank and nasty composed using amplify studio. See you next time.