Preet Bharara:

From CAFE and the Vox Media Podcast Network, this is Stay Tuned In brief. I’m Preet Bharara. Louisiana recently passed a law requiring every public school classroom in the state to display the Ten Commandments. The ACLU filed a complaint seeking to block the new religious law, arguing that blatantly violates the First Amendment’s Establishment and Free Exercise Clauses. This legal battle comes two years after the Supreme Court abandoned 50 years of precedent on the separation of church and state. A case called Kennedy V. Bremerton laid the groundwork for a new era of religious laws, and this Ten Commandments case is just one of them. Joining me to discuss this important topic is Noah Feldman. He’s a law professor at Harvard Law School, a columnist for Bloomberg Opinion and a nationally recognized expert on religion and the law. Noah, professor, welcome back to the show.

Noah Feldman:

Thanks for having me, Preet.

Preet Bharara:

First, just very briefly, could you remind us all what the First Amendment’s Establishment Clause and Free Exercise Clause do and why we have them, why the founders thought they were important?

Noah Feldman:

The Free Exercise Clause says effectively that Congress can’t interfere with your exercise of religion. And that means if you want to do something that’s motivated by religion or avoid being blocked from doing something that is motivated by religion, you can go to the courts and say, the Constitution protects me. The Establishment Clause says that Congress shall make no law respecting an establishment of religion. And as that’s been interpreted until 2022, the idea is that the government, not just Congress, can’t coerce you to do anything on the basis of religion.

And it’s also true that under existing precedent until 2022, the government couldn’t endorse a religion, so the government couldn’t make you pay your taxes to support a religion, nor could the government forcibly send messages that are in support of religion. And what happened in 2022 in the case you mentioned Kennedy v. Bremerton, is that the court threw that test out and instead it said, from now on when it comes to the establishment of religion, we’re going to be guided by “history and tradition.” And since no one knows yet how the Supreme Court will choose to interpret the extremely flexible phrase, history and tradition, you’re getting laws like the Ten Commandments, all that you just described, and other initiatives in other states as well, all of which are intended to test the courts and see just how much religion can be brought back into the public schools and into public life.

Preet Bharara:

You mentioned earlier no taxation supported religion. What if somebody claims that their religion forbids them from paying taxes to a sovereign government?

Noah Feldman:

Historically going all the way back to the framers and the original meaning of the Constitution, what they meant when they thought about protecting you against the establishment of religion was not that you could introduce your own quirky definition of religion and say, I won’t do that because it goes against my belief of what religion is. They were living in a pretty homogeneous country with respect to religion at least, at least with respect to the people who could vote. That is to say men and includes white men, and they were 98% Protestant at the time.

And so if you had said that at the time, they would’ve said to you, listen, that might be your religion, but you’re wrong that that’s a religious view. That’s just your own personal quirky view. And no, you don’t get an exemption on that basis. Today, what we would say confronted by that question is you can’t really make that claim under the Establishment Clause, because you can’t claim the government is establishing a religion, but you could say that under your Free Exercise rights, you don’t want to make a donation or rather pay taxes, because you think your religion prohibits you from doing so.

And then we would say, well, your Free Exercise rights are not unlimited. If the government has a compelling interest in making you violate your religion, it can actually do that under the right circumstances, and this is one of them, because the government can’t survive without collecting your taxes.

Preet Bharara:

Is there an argument, a constitutional or legal argument, not a policy argument, that as the country has gotten more pluralistic in terms of religion and otherwise, that the separation between church and state is more valuable, is more important? Does that comport with any theory of jurisprudence?

Noah Feldman:

Absolutely, it does. What you’re describing is an approach to the Constitution, which ironically you could call the evolutionary theory of the Constitution or Living Constitutionalism is another name for the same idea. And according to that idea, our constitution was composed 220 odd years ago, but the reason it’s still functioning is that it’s been updated so many times. And in fact, when I was a baby professor 20 years ago, I published a book called Divided by God, arguing that the Establishment Clause in particular is a great example of this. When it started to be implemented, the U.S. was only religiously heterogeneous or diverse with respect to different groups of Protestants, different denominations or Protestantism, and so we had one approach then. Then starting in the 1830s and ’40s, there was a big influx of Catholic immigrants and we had to go through a whole new evolution to realize that our diversity was Protestant Catholic.

Then in the late 19th and early 20th century, came Jews in significant numbers. And again, we had a shift as the court started thinking about basically Judeo-Christian, which was a word that was made up at the time as a general grab bag. And then in the last 20 or 30 years with substantial immigration by Muslim Americans, Hindu Americans, Buddhist Americans, we now have a moment where at least in theory, our evolution should have brought us to a place where instead of defaulting to the idea that we’re a Judeo-Christian country, the Court should have evolved to the point of thinking, we’re just going to keep religion in general out of the public square, or if we’re going to be inclusive, we have to be so broadly inclusive that we include every possible denomination.

And that’s where we were headed really until 2022 when the Court pulled the plug on that evolution and said, we’re going to do something new now. And the reason I say it’s ironic is that they said they’re doing it in the name of tradition, but in fact, our tradition on establishment is a tradition of gradually expanding our inclusiveness as our national diversity increases.

Preet Bharara:

I guess this is a history question and a political question. What’s going on? Why this recent trend? Is it as other guests have suggested there’s always been a constituency to erode the separation between church and state and they’re now seeing some hope because the personnel of the Court has changed? Is it as simple as that?

Noah Feldman:

I think that accounts for about 90% of why we’re seeing these initiatives now. The conservative majority on the Supreme Court, as is no surprise to you, Preet or to your listeners, is in the middle of a constitutional revolution. And in that revolution, they picked the hot-button topics that have been, if you’ll forgive the mixed metaphor, on their wish list for the last 30 or 40 years, and they issued major decisions in all of them, abortion, gun rights, affirmative action. They struck down a case that most non-lawyers have never heard of called the Chevron case. That matters a lot for environmental protection and administrative law. All that’s part of the revolution. And similarly, Kennedy v. Bremerton, the case that said that 50 years of precedent about the meaning of the Establishment Clause is now reversed, was the fulfillment of one of the wish list points of the conservative legal movement.

So it was part of the revolution. But as is the case, for example, with regard to guns and abortion, once the Court made its revolutionary decision, suddenly it’s had to face an outpouring of new Court challenges involving new situations, and it’s going to have to weigh in on them one by one by one, and that’s what’s going to be happening here. This term, the Supreme Court already had to hear follow-on cases on abortion and on guns, and it began a very slight retrenchment moving back towards a slightly more moderate position than the extreme position it had staked out a few years ago. When it comes to religion, the cases that are going to come to the Supreme Court over the next few years are going to be examples of extreme actions by states like the ones that we’re talking about today, and the Supreme Court is going to have to resolve those too.

And that’s sort of what happens in the aftermath of a revolution. The other element, which maybe accounts for 10% of what’s going on now, is that Christian nationalist sentiment remains a strong subculture within the United States. It’s emboldened by Donald Trump, and people who belong to that subculture often favor public action. Sometimes it’s legislation, sometimes it’s just acts by individual state officials that are meant to emphasize the Christian nature of our country. And so that means that politicians around the country see a benefit in introducing these kind of, let’s call them innovations at the margin, things that would obviously have been unconstitutional from 1971 to 2022, but now are probably unconstitutional in descriptive terms.

Preet Bharara:

So let’s talk about Louisiana. What’s going on there? What’s the law? And there’s an exchange that I’ve had on social media a bit, where I or others say something negative about this law, about the posting of the Ten Commandments, and people will respond, “What do you have against the Ten Commandments?” To which I and others often respond, “What do you have against the Constitution?” What’s the law and why is it a problem?

Noah Feldman:

Louisiana has adopted a law that requires all of the schools in the entire state to display a copy of the Ten Commandments at the front of the classroom. What’s wrong with this is that it is very close to the archetype of what it would be to establish a religion, because the Ten Commandments are religious. They begin with the words, “I am the Lord thy God who took thee out of the land of Egypt from the house of slavery.” If that is not a religious sentence, there is no religious sentence possible to be uttered. And so I don’t want to hear anybody telling me that the Ten Commandments are actually secular, although we can come back to their made up argument about that if you want. So this is religious, and when you put it in front of the classroom, what you’re saying is these are the core teachings that you who mandatorily must be in the classroom by law are going to respect.

That is you are teaching religion. Now, if you teach children religion in mandatory public schooling, that is in the ordinary English language sense of the term, establishing a single religion. It’s establishing some Judeo-Christian version of religion. And there are lots of people who do not belong to that religion or those religions. And even if there weren’t, it would still be an unconstitutional establishment of religion, because the Constitution doesn’t say you can’t establish any religion except the majority religion. It says you can’t establish any religion. So it would still be unconstitutional, but it’s obvious that it should be unconstitutional, because lots of people will belong to other religious traditions that do not consider the Ten Commandments to be of divine origin, or to be the center of ethical and moral teaching. So it should be just as simple as that.

Preet Bharara:

And it would’ve been 5, 10, 12 years ago, clearly unconstitutional for the reasons you described. And also because there is a Supreme Court precedent almost exactly on point from 1980, correct?

Noah Feldman:

Yes. There are a number of precedents that are really on point. All the way back in the ’60s, the Court struck down the practice of reading Bible verses at the beginning of the school day, right around the same time that it struck down prayer in the public schools. So that got Bible verses out of the classroom. Then there are other cases about religious display in the classroom, like the one that you mentioned. There’s even a case from later on in which Ten Commandments displays were put up in a courthouse in a place called McCreary County, and the Court struck that down too. So there’s lots and lots of precedent for the Supreme Court saying that you can’t hang the Ten Commandments in a classroom, and it may well be, Preet, and I hope it will be that the Supreme Court and before that the lower courts, when they get their hands on this case will say that.

They’ll say, look, we understand we’re supposed to apply history and tradition, but it’s very clear based on history and tradition that this is unconstitutional. I would like them to go further. I would like them to say that the core meaning of the original Establishment Clause included the idea that the government can’t coerce you in a matter of religion, and this is religious coercion and therefore it’s obviously unconstitutional. And the reason that I want that holding is that I want the Court to make a clearer rule than it presently has to stop other states from doing similar things. If every time you have a violation of the Establishment Clause, you have to make out some earlier analogy for it. That makes it very case-by-case, and it’s a kind of temptation or invitation to far-right Christian nationalist legislators or state officials to adopt other unconstitutional laws.

Preet Bharara:

As you said, and this has been true in other contexts as well, the history and tradition test is very flexible and allows you to become outcome-determinative. So with respect to the Ten Commandments provision in Louisiana, we’ve discussed the Establishment Clause problem, but the ACLU has filed suit on that ground and also Free Exercise. What’s the Free Exercise claim? And is that just as strong or weaker than the Establishment Clause claim?

Noah Feldman:

What’s happening there is that lawyers not for the first time are using suspenders and a belt. They’re making both arguments, even though in principle, you really don’t need both, just in case one of the two fails. And suspenders in a belt is, in my opinion, a terrible fashion look, but it’s often good lawyering. The reason they’re doing that is that because this Supreme Court has gutted the Establishment Clause, but at the same time that it’s done that, it has seriously muscled up the Free Exercise Clause. Now, that may sound strange, but let me explain what’s going on.

The conservative majority, and especially Justice Neil Gorsuch, who actually wrote the Kennedy against Bremerton opinion and has been taking the lead in church and state cases writing for the majority, he wants the government to be able to do more things in this sphere of public religion, but he also wants conservative Christians to be able to get exemptions from general laws like anti-discrimination laws that the government passes.

So in cases, for example, like the 303 Creative case, which was a case about a wedding videographer who didn’t want to make a wedding video for a gay couple on the grounds of religious belief, Gorsuch wrote the opinion there too, saying, the wedding videographer can get an exemption. So to get there, he and the other conservatives had to make the Free Exercise Clause much stronger than it used to be, in fact, too strong in my view.

So the reason that the ACLU lawyers are citing the Free Exercise Clause is that they figure that even if the Establishment Clause dies on the operating table, the Free Exercise Clause will be there. And then they’ll say something like, well, it violates the free exercise of religion of kids who don’t want to be exposed to religion to have to hear this. Now, the framers would be very confused. They would be like, but that’s what the Establishment Clause was for. But that’s what happens when a constitution gets over 200 years of age. It starts to evolve in weird ways. And sometimes you have to use an adjoining provision to say what the original provision was supposed to say.

Preet Bharara:

I’m confused. Are you saying that there are justices who are looking for a particular outcome and then reverse engineer the jurisprudence?

Noah Feldman:

Look, let’s be really clear that in the church and state context, I actually think that the justices are pretty sincere in thinking that their jurisprudence leads to these results. As an outside observer of their jurisprudence, I can show you profound inconsistencies, but in people’s minds, they are sincere. And let me just give you an example that maybe is a little uncomfortable for liberals like me. For many, many years, the argument in the Supreme Court that it should be possible for religious believers to get an exemption from a neutral and generally applicable law was a liberal argument. It was first articulated by Justice Brennan, one of the great liberal justices. And the basic idea behind it was a law passed by the majority, it won’t take into account the needs of vulnerable minorities. And so vulnerable minorities, including religious minorities, should be able to get an exemption.

And we all believe that. And then the Affordable Care Act passed, and gay marriage became the law of the land, which were both one legislative, one constitutional, big wins for liberals. And suddenly conservatives started using the Free Exercise Clause as a get out of jail free card to say, well, we don’t want our companies to have to pay for contraceptive care under the Affordable Care Act. We don’t want to have to treat gay and lesbian people equally. And what happened is that everything flipped. Suddenly liberals started saying, nah, no, no, no, no, you don’t get an automatic exemption. And conservatives who had opposed exemptions for many, many years started saying, yes, you do. So we’re all a little bit guilty in this context of changing our constitutional view in keeping with our political preferences.

Preet Bharara:

Yeah, no… Look, we don’t have the time and space to talk about this here, but you mentioned the Chevron case, which in part parallels this arc as you’ve described. As an initial matter, it was a Reagan era, Reagan agency interpretation of a statute or filling in an ambiguity in a statute that was conservative on an environmental regulation. And conservatives didn’t mind that and thought, yeah, refer to the agency, and then it became something of a liberal club, and so people changed their views. In the remaining time just very briefly, there’s another situation I want to mention and have you address quickly. Last week, the Oklahoma Supreme Court blocked the establishment of what would be the first publicly funded religious charter school in the country, conservative state, majority Republican appointees, Republican Attorney General in that state, and that court voted seven to one to block that publicly funded religious charter school. What’s happening there?

Noah Feldman:

They were applying the Oklahoma constitution, which goes very far in saying explicitly that the government cannot fund substantively religious education, and they would really have had to do something radical to reach a different conclusion in that case. But notice they weren’t applying the federal constitution, which is where the constitutional revolution is happening right now. So the upshot is that in a lot of states, even conservative states, we’ve seen a version of this happening sometimes in relation to abortion as well. State constitutional law and state law are strong enough to preserve what was the more moderate or liberal outcome, even when the Supreme Court in Washington has weakened the federal constitution’s protections of basic rights.

Preet Bharara:

But would you describe the Oklahoma constitution on this point, not the outcome here, but the constitutional provision on this point as being conservative or liberal or neither?

Noah Feldman:

It’s impossible to categorize it, because in the late 19th and early 20th centuries when a lot of new states were entering the union, they almost without exception, all included a provision like this one that said no state funding for “sectarian institutions.” And at the time, everybody knew that sectarian meant Catholic institutions. So this is a provision that began its life with the view that the government shouldn’t fund Catholic schools. Now, was that liberal or conservative? Even at the time, it’s hard to say.

Some of the people who supported that supported it, they wanted to maintain separation of church and state, which is a great view. Some of them held that view because they were Protestants who really didn’t like Catholics, which is a little less morally attractive, but it still enabled them to back a provision that was consistent with our constitutional tradition. So those laws, which exist in a lot of states are a very hard case where it’s hard to say that they’re liberal or conservative. It’s hard to say whether they were good or bad in original context. There was good reason for them, and there was also a pretty nasty reason for them.

Preet Bharara:

What can we look forward to? What can we expect next year and the year after that?

Noah Feldman:

On this area of church and state, we’re going to see a lot more challenges of the kind that we’re seeing now. Even if the lower courts shoot them down, they will still be appealed all the way to the Supreme Court. And so eventually in the next year or two, we’re going to start seeing a bunch of cases about church and state come to the Supreme Court growing out of these extreme experiments, and that’ll be a real test for the court. And my hope is that they’ll do a version of what they’ve done. For example, very recently in the gun cases, namely start to say, we know we said a very extreme thing that you can basically carry a gun in New York City that’s concealed, but that was going to be a little extreme.

Preet Bharara:

We’re going to uphold reasonable regulations, et cetera.

Noah Feldman:

Exactly. So that’s what happens after a revolution. Sometimes people go so crazy that they destroy their system, but if they realize that that’s a possibility, they usually ran it back in, and that’s starting slowly to happen in some conservative areas.

Preet Bharara:

So it’s like the oops court.

Noah Feldman:

Well, they were the ones who broke it, so now they own it.

Preet Bharara:

Noah Feldman, thank you so much for your time and your insight. Great to talk with you.

Noah Feldman:

Thank you for having me.

Preet Bharara:

For more analysis of legal and political issues making the headlines, become a member of the CAFE Insider. Members get access to exclusive content, including the weekly podcast I host with former U.S. Attorney, Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at Preet Bharara with the hashtag, #AskPreet. You can also now reach me on Threads, or you can call and leave me a message at 669-247-7338. That’s 669-24-Preet, or you can send an email to letters@cafe.com. Stay Tuned is presented by Cafe and the Vox Media Podcast Network.

The executive producer is Tamara Sepper. The technical director is David Tatasciore. The Deputy editor is Celine Rohr. The editorial producer is Noa Azulai. The associate producer is Claudia Hernández, and the CAFE team is Matthew Billy, Nat Weiner and Jake Kaplan. Our music is by Andrew Dost. I’m your host, Preet Bharara, Stay Tuned.