Congress shall make no laws no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people to peacefully assemble and to petition the government for a redress of grievances. Two come first, which is where religious freedom is often called americas first freedom. Why religious freedom is often called americas first freedom. Establishment actually comes even before religious freedom. Often, people dont understand what establishment is. Now, in 1833, massachusetts disestablished. And what that means is people no longer had to pay taxes to support my own religious ancestors, the congregationalists. Now, if you want to know why establishment went away, imagine how popular it was to pay taxes for somebody elses preacher. Right . That is one of the reasons it went away. But also, that is a period in American History of revivalism. People started going to camp meetings, they started lifting it up, singing songs, and they didnt like having to support these basically european style formal religion, everybody setting like this. Sitting like this. Wouldnt you rather go to a camp meeting and sing . So, that is the end of establishment in that sense. It is not, as we will see this evening, the end of issues about establishment. Similarly, free exercise of religion is difficult for people to understand, because it sounds simple. My own son, my adult son who is said, hasnt that really been settled, mom . He is a physicist. What does he know . [laughter] one phrase that does not appear in the constitution is separation of church and state. And that is often misunderstood. Separation of church and state is actually paraphrased from a letter that Thomas Jefferson wrote to the danbury baptist. It was published in the paper in massachusetts. Im going to read some of it to you. Believing with you that religion is a matter which lies solely between man and his god that he owes account to none other than for his faith and his worship. That the legitimate powers of government reach actions only, not opinions. I contemplate with solemn reverence that the whole American People have declared their legislature shall make no law establishing religion or prohibiting the free exercise thereof. Thus, building a wall of separation between church and state. Adhering to this expression of the supreme will of the nation, on behalf of the rights of conscience, i shall see with sincere satisfaction the progress of those sentiments that restore to men all his natural rights, convinced he has no natural right in opposition to his social duties. A lot of rights of conscience in this letter. This crucial language that the framers used was a relatively new idea. That the king did not control what you might believe. A new idea. Tonight, our panelists will reflect on the constitutional promise of free exercise and the prohibition against religious establishments. Establishment. We will try to keep this pretty tight. It is a big subject. We are going to look at the Masterpiece Cake shop versus Colorado Civil Rights Commission and denver baker v. Jack phillips. You may have seen this in the paper if you live around colorado. This cake for a gay couple citing that marriage is only a union between man and a woman. Were he to create a wedding cake for an event that celebrates something that goes against his understanding of the bible would have to be a personal endorsement and participation in the ceremony. The couple sued, alleging that phillips had engaged in prohibited discrimination under colorados public accommodation law. He asserts his right to freely exercise his religious belief. The second one, which has been more recently decided, is the American Legion v. The american humanist association. The state of maryland maintained a 40 foot latin cross in the median of a public highway. The cross was first erected 94 years ago as a world war i memorial. Sometimes called the bladensburg peace cross. Residents challenged the acrossents display of as an unconstitutional establishment of religion. I would like to remind you that any of the material this evening could be on the final exam. [laughter] and with that, i am going to turn it over to mr. Shackleford. [applause] mr. Shackelford i have been fighting religious freedoms cases for 30 years. And in that time, i have represented all faiths. Catholic, protestant, people of the jewish faith, muslim, native american indians. And so, i thought, if we start this discussion if people dont care about religious freedom, they are not really they are really not going to be that into what we are saying. So let me start with the first why should you care about religious freedom . If youre a person of faith, that is kind of obvious. But what if you are not a person of faith . Should it be important to you . And the answer is yes. Our founders called this the first freedom, because they understood that if you lose this freedom, you lose all your freedoms. Theres a lot of ways i can describe this. But the quickest way i can do this is, the one thing that a totalitarian regime will never allow our citizens who hold an allegiance to one higher than the government. When you see that oppressive regime coming into force, you will see the first flashpoint will be religious freedom. If you lose it at that point, you will lose it all. This has been seconded over and over again as i speak around the country. Oftentimes, i have people come up to me afterwards, particularly from Eastern European countries, who say, i am not a person of faith, but i saw this happen in my country they took down the religious some bulls, and within months, we all lost our Political Freedoms. A number of these people handed me checks because they want their Political Freedoms. Number one, i think this is something everybody should care about. Number two, some people might say, is there really a problem with religious freedom in the u. S. . Are there any battles going on . The answer is yes. We keep track of every years survey of all the cases. They are not only increasing, they are increasing at alarming rate. From my own experience, seven years ago at the civil liberty institute, we had 47 cases. Last year, we had 447. So the increase is dramatic. And especially against minority faiths. Most of you probably will not be able to see this. This is a picture of a synagogue we represent in los angeles. This is the second time this synagogue has been defaced. You can see there is pain thrown all over it. We are in the sixth lawsuit. It is trying to keep the synagogue from existing. We have those cases in los angeles, dallas, new york. In dallas, for instance, these are Orthodox Jews who walked to who walk to the synagogue. The Sticking Point at this point is that they dont have enough Parking Spaces. They dont need Parking Spaces to walk to the synagogue. But if they can keep them from having a synagogue, they all have to move. That is the point. They are trying to move these people out of their community. And this is a picture of what happened to the rabbis car. I dont know if you can see this. This is not in germany, this is in the u. S. So i just want to focus on the fact that there are battles on religious freedom in the u. S. This is an important issue. This is the basis for the founding of our country. So let me get to the subjects we are supposed to talk about tonight. We are talking about one major case that has been recently decided by the u. S. Supreme court. Let me start with the establishment clause. The case that was mentioned is cross case, but its actually the American Legion v. The American Human Association case. In that case, you had a memorial, a large cross that was put up almost 100 years ago by mothers who lost their sons in world war i and by the American Legion. It was the 49 men in maryland who lost their lives in world war i. That memorial was originally put up on American Legion land, and it sat there. If you go to look at it, it is a nine foot wide, 2. 5 foot up and down plaque listing these individuals who died. After about 40 years right when roads were being built right outside of washington dc, as they build the roads around this, the government took over the property for health and safety reasons, and all of a sudden, this memorial is now in government property. But the government did not want to disturb a Veterans Memorial, so they didnt. Decades later, the American Human Association comes along and says, hey, there is a large cross on government property, this violates the establishment clause. And they filed a lawsuit. In this report, our client is the American Legion. We were the ones that had this case in the Supreme Court. In the District Court, we won. They said this is not a violation of the establishment clause. The establishment clause is there to not have a National Church established, cannot be to not be forced to contribute to it. The idea that a Veterans Memorial has to be torn down because it is in the shape of a cross is something our founders would find bizarre, i think. So we made those arguments and we won a District Court. In District Court. In the court of appeals, the threejudge panel ruled 31 this was unconstitutional under the establishment clause. In fact, one of the questions or statements in the oral argument by one of the judges was, why dont we just cut the arms off the cross . Because that way we will not have to destroy it and yet it will not offend anybody anymore. We knew at that point we might be in trouble in that case. The 21 decision was against us and the ruling was this was going to have to be moved or destroyed. If it was moved, it would have had to be destroyed. It is not in a shape that it can be removed. And went to the Supreme Court. It went to the Supreme Court. This case is important because of the impact a decision would mean either way. If you tear down and say this is unconstitutional, this piece peace cross up for almost 100 years, only two miles away from this is Arlington National cemetery. You would have to go into arlington and take down the law freestanding crosses in arlington. In fact, you would have to go in pretty much every community of every state of our country where there are religious symbols, stars of david, crosses throughout the landscapes. There would be a religious cleansing that i think most americans could not conceive of. So we argued at the Supreme Court that there is no way that this is a violation of the establishment clause. In fact, we argued there is a case that we shouldnt even be here. The only reason we are here is not because of what the constitution says, but because of the 50yearold lemon case, we think aptly named, then has that has been applied to attack all kinds of religious symbols, religious history and traditions of our country that we think is not what the constitution says. They created things like the offended observer standard, where it means that if somebody walks through a community and sees a religious symbol on government property, that it makes it a violation of the establishment clause. Which is not anywhere new what near what the establishment clause says. They are talking about an establishment like a National Church, picking one denomination, forcing people to support that. And so, we argued in the Supreme Court not only should you uphold this, but you need to get rid of lemon, because it is being used to attack religious symbols and religious practices across the country, and it is never what our founders intended or what the constitution says. The decision of the Supreme Court came down just two months ago, and we are very pleased to say that the veterans piece peace Veterans Memorial cross was upheld. It was a 72 decision. But like most things in the Supreme Court, it was not a real simple 72 decision, because there were seven different decisions handed down. In my view, the lemon case and the lemon test being used is dead. That was being used is dead. Many commentators are saying that. They said in this they did not officially say it is that. They said in this case lemon is a bad test and is not effective, it is creating all kinds of it is making the government hostile to religion, it is creating all kinds of problems and has been for decades. It is time to put it aside. The court did not follow lemon in this case. In fact, they said there is a presumption now that from now on, any of our longstanding symbols, practices, even religious ones, are presumptively constitutional. We dont go on a search and destroy mission trying to score scrub out the religious parts of our history and heritage in the country. And so, that decision has been handed down. May go quickly, because im running out of time. Let me go quickly, because im running out of time. The Masterpiece Cake shop case is a case that was mentioned with Jack Phillips, a christian man who said he was opposed to samesex marriage. Two men came in and said we want you to do a wedding cake for us. Jack said, look, i will bake you a birthday cake, you can purchase any of my bakeries, but i cannot create a custom wedding cake because that would violate my faith and my beliefs about samesex marriage. I would be participating in and expressing something that i dont believe in. And they went to the Colorado Civil Rights Commission, and the Colorado Civil Rights Commission found Jack Phillips in violation of their laws. They said this is discrimination. And they told him they could not he could not do wedding cakes anymore if he was going to take this approach. Which half of his business what happened on. He had to let go of half of his employees. He was also ordered to go to a government Reeducation Program about his belief on these issues. He filed a lawsuit. He said this violates my free speech and free exercise rights. The Supreme Court said, look, this is normally a case about a lgbt statute protecting the rights and their freedoms, versus the fundamental First Amendment rights of free speech and freedom of religion. They said in this case, we really dont have to go to that, because in this case, the Colorado Civil Rights Commission was itself engaging in religious bigotry by how they handled this case. They were not neutral. They were discriminatory. Why do they say that . Number one, because of the statements of the commissioners. The statements of the commissioners were very antagonistic to those of faith who held the belief that samesex marriage was against their biblical beliefs. Secondly, they said it was because of how they handle other cases. In addition to Jack Phillips, who was punished, you had another person go to three different bakers and say i would like you to do a kick that says a cake that says samesex marriage is wrong. They refused to do a cake saying they were offended by that message. That person then went to the Colorado Civil Rights Commission and said they are discriminating against me and what i am wanting to do with my cake. They said no, those bakers were offended and had a right not to do those cakes. The Supreme Court said you are treating people differently. This religious person is being treated differently. Its like if youre on one side of the issue you are treated one way, and on the other side of the issue the government is treating you another way. This is discrimination. I think both sides were decided correctly and show a trend of us moving away that is really good to providing more religious freedom. And i think we will see that in the future because of the court that we have. I look forward to the discussion and now bringing up mr. Clark. [applause] mr. Clark hello. Thank you to the vail symposium for inviting me to participate in this panel. There is no debate religious that the free exercise of religion is of foundational importance in our country. And it should come as no surprise that i believe religious exemptions from certain laws have a legitimate place in our system of order liberty. Ordered liberty. I was the general counsel of the United Church of christ, which in 2014 successfully brought a lawsuit declaring north carolinas criminalization of the religious solemnization of samesex marriages to be an unconstitutional violation of our clergys and congregants rights to freely exercise the religious beliefs. However, there is debate about where the place for religious exemptions is. For example, the courts have recently been called upon to resolve questions such as whether business providers of goods and services frequently used in Wedding Services may decline to provide goods and those goods and services when the Business Owners religious beliefs do not embrace samesex marriage. Constitutional statutory standards, old and new, provide guidance to resolve this National Debate in cases like Masterpiece Cake shop. And do appr