August 28, 2025 • 48 mins
The ongoing case of Etienne v. Ferguson raises profound questions about the interplay between religious liberty and state authority, particularly regarding Catholic confession, which centuries-old religious doctrine deems as absolutely confidential. The case challenges Washington's Senate Bill 5375, titled "Concering the duty of clergy to report child abuse and neglect." Does a state mandatory reporter law violate the First Amendment’s religion clauses if it encompasses information learned during the sacrament? Or can the state justify overriding the seal of confession as a necessary and justifiable measure to protect children?
This webinar will examine the passage of Washington’s Senate Bill 5375, the historical and theological significance of confession, the constitutional protections afforded by the free exercise and establishment clauses, and the concerns of some that religious practices could be commandeered in service to the state’s police power. The discussion will also address whether the law unconstitutionally targets Catholic clergy and whether the state’s interest in child protection can supersede the religious obligation of priests to maintain absolute confidentiality, under penalty of excommunication.
Our guests will consider the delicate relationship between religious liberty and state power in this high-stakes case.
Featuring:
Matthew Martens, Partner, WilmerHale LLP
(Moderator) Hiram Sasser, Executive General Counsel, First Liberty Institute
This webinar will examine the passage of Washington’s Senate Bill 5375, the historical and theological significance of confession, the constitutional protections afforded by the free exercise and establishment clauses, and the concerns of some that religious practices could be commandeered in service to the state’s police power. The discussion will also address whether the law unconstitutionally targets Catholic clergy and whether the state’s interest in child protection can supersede the religious obligation of priests to maintain absolute confidentiality, under penalty of excommunication.
Our guests will consider the delicate relationship between religious liberty and state power in this high-stakes case.
Featuring:
Matthew Martens, Partner, WilmerHale LLP
(Moderator) Hiram Sasser, Executive General Counsel, First Liberty Institute
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
Welcome to fedsock Forums, a podcast of the Federal Society's
Practice groups. I'm Ny kas Merrick, Vice President and Director
of Practice Groups at the Federal Society. For exclusive access
to live recordings of fedsock Forum programs, become a Federal
Society member today at fedsoc dot org.
Speaker 2 (00:18):
Hello everyone, and welcome to this Federalist Society virtual event.
Speaker 3 (00:22):
My name is Marco J.
Speaker 2 (00:23):
Lloyd, and I'm Assistant Director of Practice Groups to the
Federalist Society. Today we're excited to host a litigation update
on ettn V Ferguson featuring Matthew Martins. Our moderator today
is Hiram Sasser. Hiram is executive General Counsel for First
Liberty Institute, where he oversees First Liberties litigation and media efforts.
His practice focuses on First Amendment and other constitutional and
(00:46):
civil rights.
Speaker 3 (00:47):
Issues relating to religious liberty.
Speaker 2 (00:50):
He served as co counsel in eight victories before the
United States Supreme.
Speaker 3 (00:53):
Court, including Graffi de Joy.
Speaker 2 (00:56):
In addition to his legal duties, he develops, coordinates, and
influenced successful media strategies on behalf of his clients, including
on television, radio, and other mediums. If you'd like to
learn more about today's speakers, their full bios can be
viewed on our website fedsoft dot org. If you have
a question at any point in today's program, please enter
it into the Q and A function at the bottom
(01:16):
of zoom window, and we'll do our best answer as
many as you can.
Speaker 3 (01:20):
Finally, I'll know it.
Speaker 2 (01:21):
As always, the Federal Society takes no position on particularly
legal or public policy issues, and all expression's opinion are
those of the speakers.
Speaker 3 (01:28):
With that hiroom, thank you for joining us today, and
the floor is yours.
Speaker 4 (01:32):
Hey, thanks Marco, thanks for having me. Well, you know,
as Marco said, I'm one of the lawyers at First Liberty,
and by way of disclosure, I'm also one of the
lawyers on the case that we're going to be discussing here,
but my role is mostly to carry matt suitcase and
picking wherever we eat lunch. And also we have as
(01:53):
a steam co counsel in the case folks from the
Becket Fund, and they are great lawyers, have been fantastic
to work with.
Speaker 5 (02:03):
Well.
Speaker 4 (02:03):
So I'm going to introduce our primary speaker here, Matt Martins.
He's a litigation partner wilmer Hale. He's one of the
few lawyers. Now this is according to him. I mean,
I'm just going with what he said here. He's one
of the few lawyers who has appeared and one at
trial at quote all four tables, civil plaintiff, civil defendant,
(02:24):
criminal prosecution, and criminal defendant and all. He's tried twenty
six cases ranging from securities fraud to patent infringement, to
consumer fraud, to murder to employment law because I always
put an employment law right after murder, Matt Okay, and
money laundering. He's also argued eighteen appeals in federal and
(02:45):
state Apello courts across the country. Martin's joined wilmer Hale
after a long career of government service, including as chief
Litigation Counsel for the SEC's Division of Enforcement, as Chief
of Staff for the Criminal Division at the US Department
of Justice during the Bush administration, as a law clerk
to Chief Justice William Rehnquist, and before that, DC Circuit
(03:06):
Judge Davidsontel. Matt is also our lead counsel for the archbishop, Bishop's,
auxiliary Bishops and priests in Washington in this important case
regarding the Catholic sacrament of confession. So, Matt, before we
dive into the case etch and versus Ferguson, I'd like
(03:27):
just to ask you just real quick about your work
in the religious liberty space. How'd you come to be
doing religious liberty cases at Wilmer Hale.
Speaker 6 (03:38):
Well, shortly before I joined or shortly after I joined
Wilmer Hale. I was introduced to you by one of
my law partners, and as I recall our first case together,
you called me at home one night while I was
watching Monday Night Football asking me if I could get
a tro lifted by Wednesday for a religious group to
(04:01):
participate in a religious ceremony that Wednesday before sundown. And
so I think that was ten or more years ago.
Speaker 5 (04:09):
Oh yeah, that was.
Speaker 4 (04:10):
Listen if I'm interrupting Monday Night football like it's a
big deal. Well, that that synagogue needed our help and
we had to go and we delivered there. That was
That was That was a great great, a great win.
Now really severe cases of Wilmer not really a big
profit center.
Speaker 5 (04:27):
I assume you're doing all this pro bono.
Speaker 6 (04:30):
Yeah, we do a lot of religious liberty pro bono.
I mean I suspect that we're one of the firms
in the country does the most in this space, largely
because of some interest by some other partners and I
and yeah, it's not it's not a profit center. It's
not meant to be. It's pro bono work that we
are thrilled to participate in.
Speaker 5 (04:49):
No, that's that's fantastic.
Speaker 4 (04:53):
Before we talk about the specifics of the case, you know,
I think one of the things we might want to
cover is sort of the central issue of the case
is a very old practice known in the Catholic Church
as a sacrament of confession. Can you tell us a
little bit more about the sacrament of confession and its
importance to the faith of your clients.
Speaker 7 (05:16):
Yeah, I'll be happy to give it a try.
Speaker 6 (05:17):
I'm not Roman Catholic myself, but I've learned a lot
about this during the case, and so in short, I'm
subsequent to Roman Catholic Baptism.
Speaker 7 (05:28):
As I understand it.
Speaker 6 (05:28):
Roman Catholics believe that the way you continue to address
sin in your life is through a confession to a
priest who will then provide you with penance that you
need to do, and that's the way that you re
establish forgiveness and right standing with God in the Roman
Catholic faith. And again I apologize in advance to any
(05:50):
of our listeners if I'm not getting it exactly correct.
And the confession is protected by something called the confessional seal,
which dates back I think there's records of it dating
back to the fourth or fifth century, and essentially requires
that the priest not disclosed under any circumstances whatever's learned
(06:14):
in the confessional. And over the centuries, priests have suffered
martyrdom as a result of their maintenance of the confessional seal.
So it's taken very seriously. A violation of the confessional
seal results in immediate excommunication for the priests that can
only be lifted by the pope himself. So it's a
(06:35):
long standing practice, both the confession and the protection of
the confessional seal in church teaching, and it's taken very seriously.
Speaker 4 (06:45):
Now, this is the first time a government where a
king has tried to break the seal of Confession, I mean,
from what I understand, I mean, I mean there's been
priests have had to give their law to protect the
seal of Confession. So obviously something very very important to
(07:07):
the faith, very central to the faith.
Speaker 5 (07:10):
So what did the state of Washington.
Speaker 4 (07:13):
Do that caused the bishops and priests some concern regarding
the sacrament of confession.
Speaker 6 (07:21):
Well, it's interesting actually going back to the time when
Washington Washington was a territory combined with Oregon, and then
when it split off, it had it enshrined in its
laws both during the territorial stage and when it first
became a state of protection for the priest penitive privilege,
which would protect not only Roman Catholic confession, but any
(07:42):
other faith that likewise recognized a confidentiality around confession or
communications with clergy, and that had mostly been the law
in the state of Washington, with a brief period of
exception in the mid twentieth century. Then in May of
(08:02):
twenty twenty five, the governor signed into law SB fifty
three seventy five, which sought to require priests to become
mandatory reporters of child abuse and neglect learned anywhere, including
in the confessional, without exception and without regard to need.
(08:25):
In the particular case, it was just a mandatory requirement
that any clergy and clergy were singled out by the
law provide a report if they had reason to believe
that there had been child abuse or neglect, and so
that's obviously a problem. It's inconsistent with church teaching.
Speaker 4 (08:45):
Now, it's my understanding that the church had been was
very supportive of the law. What are the parts of
the law that the church was supportive of and what
were the what was the main issue that the priests
and the bishops had with the law, you know, because
(09:09):
it seems like they were supportive of it, but they
had the one particular issue and can you talk a
little bit about that distinction.
Speaker 5 (09:17):
Yeah.
Speaker 6 (09:17):
Absolutely, the churches had policies that are actually more imposed
greater requirements on priests to report than the law in
Washington had required up through twenty twenty five. So the
church has taken this very seriously and has imposed its
own reporting requirements. And the church was fully supportive of
(09:38):
the law to the extent it required priests to report
with the one exception of the confessional, so that they're
fully they had already been according to policy reporting. They
were supportive of a law that would require reporting. What
they were seeking was a carve out for the one
instance in which their faith doesn't allow them to report,
(09:58):
which is for information learned solely in the confession.
Speaker 5 (10:03):
All right.
Speaker 4 (10:03):
So on May twenty ninth this year, you and the
team at Wilmer Hale and some folks from First Liberty
and the folks from Beckett joined forces to represent Archbishop
Etchen and Bishop Tyson, Bishop Daily, and the auxiliary bishops
and priests and filed suit against the Governor of Washington,
(10:27):
the Attorney General of Washington, and for good measure, every
county prosecutor in the state of Washington. Why did you
sue every county prosecutor in the state of Washington.
Speaker 6 (10:40):
Well, because what we have to do is sue the
people whose actions can be enjoined in a way that
would provide us with relief. So the primary enforcers of
this law would be the state and count or the
various county prosecutors, because the statute attaches criminal penalties to
the failure to make the rapport, and the county prosecutors
under Washington state law are the ones who have primary
(11:02):
authority for bringing those criminal cases. But the governor and
the Attorney general also have some enforcement authority, some criminal
enforcement authority in a residual basis if a county prosecutor
can't or won't bring a case. And so we had
to sue the parties that we needed to enjoin in
order to provide our clients with relief.
Speaker 5 (11:24):
Yeah, that's pretty common.
Speaker 4 (11:27):
Did that in Texas years ago as well on a
different case. But so let me let me ask you.
I just want to make sure I understand what. So
what was the objective of the lawsuit? What do you
what were you what are you trying to achieve with
the suit.
Speaker 6 (11:43):
So we were asking for a declaration that the statute
was unconstitutional as applied to the Roman Catholic Sacrament of Confession,
and an injunction against its application with regard to statements
learned solely in the in the Catholic Sacrament of Confession.
Speaker 7 (12:01):
So we were very narrow.
Speaker 6 (12:03):
We were bringing an as applied challenge, not a facial challenge,
and we were seeking that the statue being joined only
as applied to Roman Catholic confession because our clients were
solely Roman Catholic.
Speaker 4 (12:16):
Well, so, in bringing this lawsuit, what were the arguments
you made? I mean, you've alluded to it, you know,
in terms of it being unconstitutional. What were the arguments
that you made in the lawsuit that the laws is
a violation of the Constitution.
Speaker 7 (12:37):
So we brought a number of claims.
Speaker 6 (12:38):
Our first and primary claim was brought under the free
exercise clause of the First Amendment, as incorporated by the
Fourteenth Amendment against the States, and so the argument was,
as your listeners may recall, going back to Employment Division
versus Smith, the Supreme Court had said that laws of
religion religious conviction doesn't exempt you from laws of general applicability,
(13:01):
but if a law is not generally applicable, or if
it is not neutral toward religion, then it's subject to
strict scrutiny. And what we had here was a law
we argued that was neither neutral nor generally applicable. Not
neutral because on its face it singled out clergy, and
there were statements made by various legislators in the course
(13:21):
of adopting the law that it was intended to target
a Roman Catholic confession. So we argued it wasn't neutral
on its face, and we also argued that it wasn't
generally applicable. So there's not in Washington State, for an example,
a statewide obligation for anyone and everyone who receives credible
allegations of child abuse to report it required only clergy
(13:46):
to report. So, for example, you could be standing in
your front yard and see your neighbor abuse their child,
watch it with your own eyes. You'd have no reporting obligation.
But if you heard about it secondhand from somebody and
the confessional, you would have an obligation to report. And
so the law did not create a generally applicable obligation
to report in response to the issue that the state
(14:12):
was rightly concerned about. I mean, we're all concerned about
child abuse and neglect, but they had not imposed a
generally applicable response to that.
Speaker 4 (14:20):
That was our primary Well, let me ask you. They
lawyers were lawyers mandatory.
Speaker 6 (14:28):
Reporters, so there was car vouts for some lawyers.
Speaker 5 (14:35):
Yeah, talks a little bit about that.
Speaker 6 (14:37):
Yeah, So, as a general rule, lawyers were not a
mandatory reporters, but some personnel at universities were mandatory reporters.
Where lawyers may be employed, but then there was a
car vout for some lawyers at the universities, and so
you had just this what we called sort of this
Swiss cheese effect of some people had to report, some
(15:00):
people that some employers had to report, except those that didn't,
and so you just had this patchwork of reporting obligations,
and the state had lots of reasons why they thought
that those that patchwork made sense. And the answer is
that that's interesting, but it doesn't change the fact that
it's not a law of general applicability. You can bring
up your reasons under the strict scrutiny test, claiming of
(15:23):
a compelling interest and narrow tailoring to that interest, but
on the question of whether or not it's a generally
applicable law, the patchwork of obligations and exemptions made it
not generally applicable.
Speaker 4 (15:35):
Yeah, you know, there's been a lot of controversy recently
about employment division versus Smith. I mean, there's been some
Supreme Court cases that have taken some shots at overturning
employment division versus Smith. But it always seems that what
ends up happening is the Smith just gets narrower and
(15:56):
narrower doesn't go away, but it's it's it's getting thinner
and thinner. But this is a case in which there were, uh,
there was there was the argument that employment of division
versus Smith did not apply at all, and uh and therefore, uh,
(16:17):
you would go then directly to strict scrutiny. Just so
our listeners, and everybody does. Religious liberty might be tuning in.
What happens if employment division versus Smith applies. If it's
a neutral law of general applicability, what happens, what's the
what's the level of analysis after that?
Speaker 6 (16:37):
Yeah, So if if you're if if you're in a
situation where the law is not neutral and not and
or not generally applicable, and either is sufficient, then you
go into strict scrutiny, and the state has to prove
that they have a compelling interest uh and that the
law is narrowly tailored to achieve that interest. So if
the law is either over or under inclusive, it fails
(16:58):
the theric scrutiny test. It's not considered narrowly tailored to
that interest. And in this instance, just the example I
gave about the neighbor shows you that it's under inclusive.
And it's also over inclusive because the law required reporting
by priests, even if the information might otherwise be known
to the state. There was no there's no need element
(17:21):
to it. It's a universal obligation for clergy to report
if they learn in the confessional without regard to the
state's needs. The law is both under inclusive doesn't require
the neighbor to report, and over inclusive it requires priests
to report even when the police have other means at
their disposal.
Speaker 4 (17:35):
And if it is neutral and generally applicable, then rational basis.
Speaker 7 (17:39):
Rational basis review right correct.
Speaker 6 (17:41):
If it is neutral and generally applicable, then rational basis
review applies. So obviously the generally applicable neutrality question is
essentially decisive. Nobody ever survives the strict scrutiny.
Speaker 4 (17:52):
But well, that seems to have been at least the
pattern for the at the US Supreme Court and then
and also uh at the at the at the Court
of Appeals almost all of the time. So let's I
want to just kind of break down just a little
bit on the free exercise before.
Speaker 5 (18:11):
We move on to another argument.
Speaker 4 (18:13):
Uh So, so if the law is not neutral and
generally applicable, then you go to strict scrutiny. And and
now who has the burden after that? And uh and
and and what do they have to demonstrate if you
might be able to help us out with that?
Speaker 6 (18:30):
Sure, so the plaintiff has to demonstrate that the law
imposes some type of burden on their on their faith
sincerely held religious belief, So they have to show the
sincerity of their belief and that the law is compelling
to do them to do something or preventing them from
doing something contrary to their religious belief, their sincere religious belief.
(18:52):
If that burden is met, and there's rarely challenges to sincerity,
particularly when you're talking about it to millennia old faith
where this is well established in church teaching in that instance,
and the burden shifts to the defendants to satisfy the
strict scrutiny. Demon's point to a compelling interest that requires,
(19:14):
and not just compelling interests generically, but compelling interest in
forcing these particular plaintiffs to act contrary to their faith,
and then show that the law is narrowly tailored to
that compelling interest.
Speaker 4 (19:27):
Yeah, you know, Matt, one of the things I teach
at at the University of Texas there is a kind
of a part time adjunct professor. And one of the
ways of framing that question, that compelling interest question that
I like to kind of have them think about, is
(19:47):
it's not asking what's the government's compelling interest in whatever
the rule or regulation is. It's really what's the government's
compelling interests of not providing an exception to this person
right here in court today, and.
Speaker 5 (20:04):
To frame it if and when you frame it that way.
Speaker 4 (20:07):
And now I didn't invent that framing. Chief Justice Roberts
invented that framing and udv versus Gonzales dealing with the
Wasca Tea church thing there that where they were, you know,
drinking the schedule one substance drug tea. And yeah, you
(20:27):
have a compelling interest in prohibiting schedule one drugs, but
what's the compelling interest in not providing this particular church
here an exception and sort of kind of flipping it
in that way. That was an unanimous decision ad zero.
But Alito didn't participate because he wasn't on the bench yet.
But anyway, so what the government has this burden now
(20:50):
they're going to have to show up with compelling interest.
Speaker 5 (20:54):
What did they show up with?
Speaker 6 (20:57):
Well, I mean, they showed up with what you would
expect they'd show up with with, which is speaking to
the state's compelling interest in protecting children. But as you
point out that, well we can all agree that's compelling
and important, it's not the interest that satisfies the tests
because the question in this instance, under this test is
(21:18):
is their compelling interest in making these particular plaintiffs violate
the confidential seal? And the state then has to show
if there is that the law is narrowly tailored to that.
And as I said before, this law was both under
inclusive and overinclusive. Didn't require reporting by everyone who might
know about abuse, and required reporting even when there was
(21:41):
no need because the state already knew about the case
and had proof at their disposal.
Speaker 4 (21:47):
Yeah, and it's even narrower than now what we'd started
talking about before. It's just the sacrament of confession, correct,
And so it's narrow as to the people and narrow
as to the practice. And then why why do we
not have an exception for that? You know, one of
(22:07):
the things that I've always found fascinating. And I don't
know if you've sort of encountered this in your practice,
and you can tell us if you haven't, you know
what you what you think about this. But whenever you
have an exception, that then gets you out of employment
division versus Smith and into strict scrutiny. It's like that
exception is almost like this uh, this train with the
(22:30):
special battering ram on it because it takes you, it
plows the field for both getting out of Smith and
then also if you how can to be compelling if
you have exceptions, that's also a lesson from udv versus Gonsolees.
And then and then that that exception thing then drives
(22:51):
right into a least restrictive means. Now it just so
makes people go up to speed on strict scrutiny, on
strict scrutiny to government has the burden persuasion improof on
both prongs, and you've identified those as compelling interest, and
then that they're advancing it through that interest to the
least restrictive means. You know who has to win? Does
(23:16):
the government have to win either one of those or both?
Or how does that work?
Speaker 7 (23:20):
Both?
Speaker 6 (23:20):
So the government has the burden of proof and persuasion
on both the existence of a compelling interest and the
narrow tailoring.
Speaker 7 (23:27):
And I think.
Speaker 6 (23:29):
As I said, and you observed, that state can almost
never maybe never win that the court is emphasized, the
courts have emphasized, but the Supreme Court and the circuit courts,
it's a very rigid, stringent test, nearly impossible to meet,
and certainly no case in recent memory has survived that.
(23:51):
So the fight really does become about whether or not
the law is generally applicable and or neutral.
Speaker 5 (23:56):
Yeah, and so you know, you have the free exercise.
Speaker 4 (24:00):
Claim, and we talked about that. What's another claim that
you brought and tell us a little bit about that.
Speaker 6 (24:10):
Well, we developed a claim called what we called the
commandeering claim. So the idea behind our commandeering claim is
that the state was trying to take control of a
compelled speech, compelled speech by the church, compelled confession, and
(24:31):
use that compelled speech in a way different than the
Church had designed it, namely with its confidentiality, to achieve
something that the state could not otherwise achieve. In other words,
in the criminal context, as we all know, under both
the federal constitutions Fit Amendment and in this case, under
the Washington State constitution, the state can't compel someone to
(24:51):
speak about a crime. But the Church, through its sacrament
and its doctrine, does int that compel people to confess
their sins. But this the Church does that with a
promise of confidentiality. And what the state, we were arguing,
was trying to do was sees that confession that the
(25:13):
Church compelled strip it of its confidentiality and use it
for state purposes when the state could not itself compel
that speech. We called that a commandeering claim. And you know,
we think it's not been recognized previously, but sort of
the underlying pieces of it have been recognized, this idea
that the state used the church to accomplish the state's
(25:36):
own ends.
Speaker 4 (25:38):
So where would that argument be housed in in in
sort of constitutional jurisprudence, how would you where would you
put that?
Speaker 6 (25:49):
Well, we certainly put it in the First Amendment. I
think we view it as sort of the combination of
the two religion clauses. So in the same way that
the Supreme Court has recognized what we'll talk about in
a second, the church autonomy doctrine, as being a function
of both of the religion clauses, I think we would
say that our commandeering claim was again a function of
both clauses, that the state it created an establishment issue
(26:12):
because the church, the state is seizing control in some
way of a church sacrament, and yet it's changing the
sacrament in a way that it affects its exercise by
the participants. So it really runs runs a foul of
both of the religion clauses.
Speaker 7 (26:27):
Of the First Amendment.
Speaker 4 (26:28):
Yeah, it kind of reminds me of the the when
when when President Jefferson was was was responding to the
Danbury Baptists who had written him a letter saying, hey,
you know, you know, hopefully we'll kind of basically continue
to have religious liberty over here, right, is all going
to be okay? And he talked about the wall, his
(26:50):
wall of separation. You know, I think the razor wire
was pointing at the government, not at the not at
the not at the church. And and certainly that seems
to resonate that idea that he was talking about. That
letter resonates with the commandeering argument. So there's this thing
called the church autonomy doctrine. You guys brought that as
(27:13):
a claim. And you know, now the fedsock hosted a
webinar on the church autonomy doctrine back in July twenty third,
twenty twenty five. If it's a new doctor to you,
if it's I'm familiar with the phrase church autonomy doctrine,
you can go pull that webinar up. We're not going
(27:34):
to rehash everything from there, but you know, give us
like the sixty second version, Matt of what is this
thing called the church autonomy doctrine, and like where does
it come from?
Speaker 6 (27:45):
Yeah, So, dating back to the mid eighteen hundreds, in
a case called I think Watson b. Jones, the Supreme
Court recognized that with regard to matters of internal church governance,
the courts had no say, and that initial statement in
Watson had been developed over the years in a case
(28:06):
called Serbia Orthodox Church, and then more recently in the
employment the context of employing ministers, so our Lady of Guadalupe.
Speaker 7 (28:16):
As one case more recently.
Speaker 6 (28:18):
And so the gist of it is that when it
comes to matters of internal church governance, so things like
church discipline or employment of ministers, that those type of
things are governed by the church and the state is
absolutely prohibited from regulating them. And here what we had,
we argued, was a matter of church governance, a matter
(28:41):
of church discipline. Roman Catholic teaching is that the priest
serves as in part the judge in the administration of
the sacrament and provides mercy to the participant as well
on God's behalf.
Speaker 7 (28:53):
And so.
Speaker 6 (28:55):
This governance activity has rules around it establish by church doctrine.
And what we were arguing was that what the state
was trying to do was violate the church's autonomy by
inserting itself into that governance function, uh, and rewriting the
rules so to speak, changing literally changing how it's administered
(29:17):
by law. And so we argued that that violated the
church autonomy doctrine again a function of both the the
religion of both religion clauses of the First Amendment.
Speaker 4 (29:28):
Yeah, in the statue kind of had a quirky thing about, uh,
you know that dealt with people that were both receiving
confession but also supervising, Uh, you know, the supervision component
of that of supervising others who would be potentially receiving confession.
And obviously you know you have yeah, you have yet
(29:52):
a multitude of clients within a hierarchical structure. Some of
them are are are those are those supervisors. So so
if you know you have this law, it's coming to
effect in July, or was going to go into effect
in July of this year. It was May twenty ninth
when you filed, you filed something else along the lines.
Speaker 5 (30:13):
You filed a pulmonary injunction motion. Tell us, tell us.
Speaker 4 (30:17):
About there was an argument. Tell us a little bit
about the argument for the pulminary injunction motion.
Speaker 5 (30:25):
You know how did that go? And who all was
a participant there?
Speaker 6 (30:31):
Well, the oral argument was on a Monday in Tacoma,
and we were prepping in a moot court on Friday
when we got a set of questions from the court
that the court wanted us to address at the hearing,
and one of them was something like, and I'm paraphrasing
but only slightly plain, us argue that the law commandeers
(30:55):
their religious practice. Isn't that correct? So we felt pretty
good about that, so we decided over the weekend rather
than wait until Monday to provide responses at the oral argument,
we would write up responses. So the court had I
think maybe four questions for both parties and then three
or four questions for us, and like nine questions for
(31:16):
the state. So we prepared written responses to the ones
that were to jointly to both parties and to ours
and filed them on Sunday night. And the result of
that was when I got out to oral argument on Monday,
since it was my motion, normally I, on behalf of
the plane iff would go first, and the Court said,
(31:37):
I think I've got your position. Let's start with the state,
so it was an unusual structure where the most of
the argument was by the party opposing. I got off
and offered some brief comments and rebuttaled very brief because
the judge had signaled that he didn't want to hear
a whole lot more and when you appear to be winning,
you should stop talking, and so I said very little.
(32:00):
And we were optimistic based on the judges' comments that
things were headed our way. But the state had focused
most of its argument on standing because we were bringing
a p reenforcement challenge, and they were arguing that it
wasn't ripe, but that we wouldn't have we didn't have standing,
and that's where they focused most of their discussion during
the oral argument.
Speaker 5 (32:19):
Now, something happened to the county.
Speaker 4 (32:21):
The county prosecutors did not present during the priminary injunction hearing.
Speaker 6 (32:28):
What happened to them before we showed up on that Monday,
we had an agreement with all the county prosecutors that
they would stipulate to the entry of a preliminary injunction
and just let the state, the government specifically the governor
and the Attorney General, argue the case, and that they
would live by whatever result came about with a permanent
(32:50):
if a permanent injunction came about. And so we had
all literally every single one of the county prosecutors that
already stipulated to a preliminary injunction, which the court entered
before we even started.
Speaker 4 (33:01):
Now, you know, obviously I saw the questions that Judge Estudio,
but forth, I'm always impressed by these disrect court judges
that have these massive dockets of you know, just I mean,
you know obviously that that's a major metropolitan area Seattle, Tacoma,
(33:22):
but judges all over the country, these distrect court judges
that have you know, huge you know, hundreds of criminal cases,
tons of complex civil cases, and the amount of preparation
and the types of questions that a lot of these
judges will ask. And I always find it very impressive
how much time they're willing to spend on it on
(33:43):
a case that on a topic that they're not going
to see very often. I mean, I was impressed by
by his by his by his questions, the insight, just
the study that he must have done on the free
exercise clause, on this ackerman on church autonomy. He was
just really evidence a lot of hard work, is that?
(34:07):
I mean, you know, did that seem unusual to you?
Very seemed unusual to me, even given the fact that
I've always been impressed with how well judges dial into
this issue they see only occasionally.
Speaker 6 (34:19):
Yeah, I mean, certainly you think about just the time
crunch in a preliminary injunction motion. Right, you're talking about
bringing a case briefing the merits of it very quickly.
The whole point is we need emergency relief before the
law takes effect on July twenty fifth. So the judge had,
I think, after our reply brief was filed, had like
maybe ten days roughly, maybe a little longer than that
(34:42):
to consider the papers and clearly understood the issues, understood
not only the facts, but had read the relevant cases,
had sort of honed in on what the pressure points
were and asked the insightful question. So, you know, as
you said, it's always impressive when a judge can dive
into a topic area where he or she doesn't regularly practice.
Speaker 7 (35:04):
I don't know how many. I don't We didn't.
Speaker 6 (35:06):
Find any other religious liberty cases that just Judgestedio had
had before, and he hasn't been on the bench that long.
I think he was a pointed by judge President of Biden.
So it was a very quick turnaround and he was
very much on top of the issues.
Speaker 5 (35:22):
Yeah, I mean it was a different judge.
Speaker 4 (35:24):
It was the same courtroom as the origin story for
Kennedy versus Bremerton. But but but definitely judges Dido is
you know, really demonstrated that you know, he's he's he's
pulling all on iters or something. He's working pretty hard,
uh to be able to prepare that well on a
(35:47):
topic you're not going to see very often. So what
happened after that? You got to you got to ruling.
How long did it take and and what did it say?
Speaker 6 (35:57):
Well, we argue the case on Monday, and we we're
at a conference, a religious liberty conference. Hiram and I
were together on Friday when we got a ruling and
the judge granted our preliminary request for a preliminary injunction
find finding that we were likely to succeed on the merits.
He found that the law was both not neutral and
(36:17):
not generally applicable, so subject to strict scrutiny, and he
ruled in our favor. He didn't reach the other arguments
that we made, he didn't need to. And obviously that's
as much as you'd like a judge to affirm every
one of your arguments as genius. The judge, I think
took the proper approach of being deciding what he needed
(36:40):
to decide and not more for purposes of the preliminary injunction,
and so he ruled simply on that ground.
Speaker 4 (36:48):
Well, so pulminary junction is in place, which means a
law obviously does not go into effect pending the case.
Speaker 5 (36:58):
Where do you think this case goes from here?
Speaker 6 (37:01):
Well, we hope we win, as we always as we
always do. We think that we're correct at the oldest
known religious liberty case in the country's history, people be
Phillips from eighteen twelve recognized protection for the sacrament of
confession and it's confidentiality. So we think we have more
(37:22):
than two hundred years of history on our side here,
legal history, and so you know we're optimistic, but you know,
stay tuned.
Speaker 5 (37:31):
Yeah, no, no, that's exactly right.
Speaker 4 (37:34):
Well, Marco is going to come on board now from
FEDSOC and he's going to help us field some questions. So, Margaret,
do we have some questions in the queue and if so,
let's get those fired up.
Speaker 5 (37:48):
Yeah.
Speaker 2 (37:48):
Absolutely, And just to remind you to our audience, if
you have questions, you can enter that in the Q
and a function at the bottom of your zoom window.
Kevin Snyder asked what argument did he use to get
past ripeness for this pre enforcement challenge?
Speaker 5 (38:03):
That's great? What what? What? What? What? What did you
do for that?
Speaker 6 (38:08):
Well, I mean, we had a number of things we
were able to appoint to. So the first of all
was the state was not willing to disclaim that they
would enforce the law, and that is one of the
primary factors under Ninth Circuit case law, the unwillingness to
disclaim enforcement. We also had the fact that the law
was specifically enacted to a target the Roman Catholic Church. Uh,
(38:34):
you know, to to target clergy in particular. But there
was certainly references to the Roman Catholic Church in the
legislative history, and so you know, part of our argument
was the state claims they have compelling interests, they passed
this law to address clergy and that and they won't
say they won't enforce it. Uh, that sounds pretty ripe.
(38:55):
We had also, on top of that the fact the
state Attorney General had been conducting an investigation which he
was trying to inquire into whether or not the church
was reporting with regard to abuse cases, and so sort
of all of that together, particularly in addition including the
ongoing state attorney general investigation, and those other factors were
(39:16):
sufficient for the court to conclude the case was ripe.
Speaker 4 (39:19):
Yeah, man, I got to imagine that if you're showing
up the court and you're arguing, we have a compelling
interest as to these particular plaintiffs right here and also
in another section of the brief, but their claims are
not right that somehow doesn't necessarily jive, and something that's certainly.
Speaker 5 (39:41):
Got to give on that.
Speaker 6 (39:42):
Yeah, i'd also say, I mean, we had each of
the priests had also signed a sworn declaration saying that
A they take confession and b they won't comply with
the law. What they couldn't say is sort of what
the content of those confessions are, because that would itself
violate the sacramental seal. But they said, we take confession,
we won't follow the law, there's an ongoing investigation, you
(40:05):
won't disclaim enforcement, and you pass the law because of
us and that together the court found was sufficient and
it was clearly sufficient in a non circuit case law
to establish standing.
Speaker 5 (40:17):
All right, Marco, what else do we have?
Speaker 2 (40:20):
Lee McGrath asks how other denominations objected to the law
and point out that Eastern Orthodox, Lutherans and Anglicans all
have traditions of private confession.
Speaker 7 (40:31):
Yeah, yes, yeah, yeah.
Speaker 6 (40:33):
So the Orthodox Church of America has filed their own lawsuit,
and initially filed in the Eastern District of Washington, are
now transferred to the Western District. They are the only
other tradition that I believe to date has filed a lawsuit.
I am not aware of one by the Lutherans or
any other churches.
Speaker 5 (40:52):
And from what I understand, they have met.
Speaker 4 (40:55):
Tell me if I'm wrong, but they have an agreed
pulmonary injunction with the with the state as a result
of the preliminary injunction that that you obtained prior to that.
Speaker 6 (41:06):
Correct, So essentially, after we obtained a preliminary in junction,
they reached an agreed preliminary injunction that was essentially identical
to the one that we had reached with the county attorneys.
Speaker 2 (41:17):
All right, Marco, what else we got he Overstreet asks
does the state intend to appeal?
Speaker 6 (41:23):
And if so, why, Well you would have to ask
the state.
Speaker 7 (41:28):
They have not appealed and what they intend to do.
I don't know.
Speaker 2 (41:34):
An anonymous attendee point so that Bob Ferguson is a
very smart and capable lawyer and also a Catholic, and
does does him being a Catholic play into the argument
for targetedness and kind of what is what is your
understanding of the interplay there?
Speaker 7 (41:57):
I don't believe.
Speaker 6 (41:58):
I mean, we certainly referenced the various statements that were
made during the legislative process. I think one person in
particulars had said something like one legislator had said something like,
you know, the church can change its rules if it
needs to to comply with the law, and we're like, well,
they're not rules, Uh, it's doctrine, and no, you can't
(42:19):
just change it. So I think that there were, certainly,
you know, to be to be gracious, some degree of
misunderstanding of what the church's teaching was and its centrality
by those passing the laws, at least by some of
those passing the laws.
Speaker 3 (42:38):
And to kind of further address the question.
Speaker 2 (42:43):
Do you do you think he was aware of the
unconstitutionality of that law, and.
Speaker 3 (42:52):
Uh, very capable lawyer.
Speaker 7 (42:56):
I think.
Speaker 6 (42:56):
I think what I would say is, I don't assume
that any and assume the worst about state officials, that
they act intentionally trying to violate the constitution.
Speaker 4 (43:06):
It's always been been my experience is that most most
state officials are trying to do what they think is right,
what they think is the best, is the best thing.
And that's one of the great things where we have,
you know, we have our system of laws.
Speaker 5 (43:22):
We get to test those those judgments.
Speaker 4 (43:25):
Marco, do we have I think we have time for
maybe a couple more questions, what do we have any more?
Speaker 2 (43:33):
Pete Overstreet again just mentions that he's a capolican, a prosecutor,
and he's very fond of the commandeering argument. And if
is there anything you want to more you want to
say on that argument.
Speaker 6 (43:49):
Other than that I came up with it in the shower.
Now it was really sort of trying to put together
various pieces to be in all seriousness. I mean, I
it seemed, you know, there's something at a gut level
wrong with this right the state can't compel people to
speak and yet they're trying to use the church's ability
(44:09):
to compel people to speak and at a gut level. Initially,
as we started thinking through this, it's like there's something
that seems wrong with this, but like what is it?
And it was a function of sort of thinking about
if you remember back that Supreme Court New York versus
the United States, the commandeering case that said the United
States can't commandeer the functions of a state to carry
(44:30):
out the federal government's functions or the federal government's policy.
So that's kind of that was part of the idea,
sort of that why I call it commandeering, And then
we were able to look at some law journal articles
and about kind of historically what the establishment clause prohibited,
and kind of we put those pieces together.
Speaker 7 (44:52):
Into this commendeering idea.
Speaker 4 (44:56):
Yeah, well, it's obviously it's a unique fact pattern, right.
It's it's pretty rare for the government to enact a
law that would that's requiring religious or people of faith
to do something on the government's behalf in a process
(45:17):
that would not exist but for the faith's doctrine. So
the faith creates somebody's faith or a group of people's
faith creates a need to do a particular act and
then for the government to then say, okay, now we
need you to do that act on our behalf. That
(45:38):
that's a unique fact pattern for this Well listen, I
just I say on that.
Speaker 6 (45:43):
I think that's a very important point, right, which is
that the state this speech only exists because of the
religious faith. Right, all the other evidence in the world
that exists about this child abuse and neglect is still
available to the to the prosecutor. The only thing that's
unavailable is something that the religion creates and protects, and
(46:08):
so it's not in any way impairing otherwise the ability
of the state to prosecute, investigate, and prosecute this crime
that would have existed absent this religious practice. And I
think that's important to recognize that the state can still
fully investigate these and should and prosecute them to protect children,
(46:28):
and there's a way to do that while also protecting
this religious practice.
Speaker 5 (46:33):
Yeah, I think I'll wrap up with this.
Speaker 4 (46:35):
You know, look, it's religious liberty cases are always probably
on their best footing when they're asking for narrow relief,
and because of the narrowness of the relief being sought,
here wasn't a blanket exemption. It was just for the
seal of confession that that itself typically lends itself towards
(47:01):
the religious claimant prevailing. Well, listen, Matt, I want to
thank you so much for coming and being part of
the webminar giving us an update on this important case.
We'll keep track of that, see what's going on, and
as things develop, have more updates for our listeners and
(47:23):
the folks that are following along. So with that, Marco,
I'll flip it back to you to close us out.
Speaker 2 (47:30):
Well, I want to second that thanks for your time
and expertise today, both of you. I would also like
to thank the audience for joining us. We greatly appreciate
your participation. For information more upcoming events, visit our website
or all major social media platforms at fed SoC. On
that note, we are a journed.
Speaker 1 (47:51):
Thank you again, thank you for listening to this episode
of fed SoC forms, a podcast of the Federal Society's
Practice groups. For more and from about the Federal Society,
the practice groups, and to become a Federal Society member,
please visit our website at fedsoc dot org.
Welcome to fedsock Forums, a podcast of the Federal Society's
Practice groups. I'm Ny kas Merrick, Vice President and Director
of Practice Groups at the Federal Society. For exclusive access
to live recordings of fedsock Forum programs, become a Federal
Society member today at fedsoc dot org.
Speaker 2 (00:18):
Hello everyone, and welcome to this Federalist Society virtual event.
Speaker 3 (00:22):
My name is Marco J.
Speaker 2 (00:23):
Lloyd, and I'm Assistant Director of Practice Groups to the
Federalist Society. Today we're excited to host a litigation update
on ettn V Ferguson featuring Matthew Martins. Our moderator today
is Hiram Sasser. Hiram is executive General Counsel for First
Liberty Institute, where he oversees First Liberties litigation and media efforts.
His practice focuses on First Amendment and other constitutional and
(00:46):
civil rights.
Speaker 3 (00:47):
Issues relating to religious liberty.
Speaker 2 (00:50):
He served as co counsel in eight victories before the
United States Supreme.
Speaker 3 (00:53):
Court, including Graffi de Joy.
Speaker 2 (00:56):
In addition to his legal duties, he develops, coordinates, and
influenced successful media strategies on behalf of his clients, including
on television, radio, and other mediums. If you'd like to
learn more about today's speakers, their full bios can be
viewed on our website fedsoft dot org. If you have
a question at any point in today's program, please enter
it into the Q and A function at the bottom
(01:16):
of zoom window, and we'll do our best answer as
many as you can.
Speaker 3 (01:20):
Finally, I'll know it.
Speaker 2 (01:21):
As always, the Federal Society takes no position on particularly
legal or public policy issues, and all expression's opinion are
those of the speakers.
Speaker 3 (01:28):
With that hiroom, thank you for joining us today, and
the floor is yours.
Speaker 4 (01:32):
Hey, thanks Marco, thanks for having me. Well, you know,
as Marco said, I'm one of the lawyers at First Liberty,
and by way of disclosure, I'm also one of the
lawyers on the case that we're going to be discussing here,
but my role is mostly to carry matt suitcase and
picking wherever we eat lunch. And also we have as
(01:53):
a steam co counsel in the case folks from the
Becket Fund, and they are great lawyers, have been fantastic
to work with.
Speaker 5 (02:03):
Well.
Speaker 4 (02:03):
So I'm going to introduce our primary speaker here, Matt Martins.
He's a litigation partner wilmer Hale. He's one of the
few lawyers. Now this is according to him. I mean,
I'm just going with what he said here. He's one
of the few lawyers who has appeared and one at
trial at quote all four tables, civil plaintiff, civil defendant,
(02:24):
criminal prosecution, and criminal defendant and all. He's tried twenty
six cases ranging from securities fraud to patent infringement, to
consumer fraud, to murder to employment law because I always
put an employment law right after murder, Matt Okay, and
money laundering. He's also argued eighteen appeals in federal and
(02:45):
state Apello courts across the country. Martin's joined wilmer Hale
after a long career of government service, including as chief
Litigation Counsel for the SEC's Division of Enforcement, as Chief
of Staff for the Criminal Division at the US Department
of Justice during the Bush administration, as a law clerk
to Chief Justice William Rehnquist, and before that, DC Circuit
(03:06):
Judge Davidsontel. Matt is also our lead counsel for the archbishop, Bishop's,
auxiliary Bishops and priests in Washington in this important case
regarding the Catholic sacrament of confession. So, Matt, before we
dive into the case etch and versus Ferguson, I'd like
(03:27):
just to ask you just real quick about your work
in the religious liberty space. How'd you come to be
doing religious liberty cases at Wilmer Hale.
Speaker 6 (03:38):
Well, shortly before I joined or shortly after I joined
Wilmer Hale. I was introduced to you by one of
my law partners, and as I recall our first case together,
you called me at home one night while I was
watching Monday Night Football asking me if I could get
a tro lifted by Wednesday for a religious group to
(04:01):
participate in a religious ceremony that Wednesday before sundown. And
so I think that was ten or more years ago.
Speaker 5 (04:09):
Oh yeah, that was.
Speaker 4 (04:10):
Listen if I'm interrupting Monday Night football like it's a
big deal. Well, that that synagogue needed our help and
we had to go and we delivered there. That was
That was That was a great great, a great win.
Now really severe cases of Wilmer not really a big
profit center.
Speaker 5 (04:27):
I assume you're doing all this pro bono.
Speaker 6 (04:30):
Yeah, we do a lot of religious liberty pro bono.
I mean I suspect that we're one of the firms
in the country does the most in this space, largely
because of some interest by some other partners and I
and yeah, it's not it's not a profit center. It's
not meant to be. It's pro bono work that we
are thrilled to participate in.
Speaker 5 (04:49):
No, that's that's fantastic.
Speaker 4 (04:53):
Before we talk about the specifics of the case, you know,
I think one of the things we might want to
cover is sort of the central issue of the case
is a very old practice known in the Catholic Church
as a sacrament of confession. Can you tell us a
little bit more about the sacrament of confession and its
importance to the faith of your clients.
Speaker 7 (05:16):
Yeah, I'll be happy to give it a try.
Speaker 6 (05:17):
I'm not Roman Catholic myself, but I've learned a lot
about this during the case, and so in short, I'm
subsequent to Roman Catholic Baptism.
Speaker 7 (05:28):
As I understand it.
Speaker 6 (05:28):
Roman Catholics believe that the way you continue to address
sin in your life is through a confession to a
priest who will then provide you with penance that you
need to do, and that's the way that you re
establish forgiveness and right standing with God in the Roman
Catholic faith. And again I apologize in advance to any
(05:50):
of our listeners if I'm not getting it exactly correct.
And the confession is protected by something called the confessional seal,
which dates back I think there's records of it dating
back to the fourth or fifth century, and essentially requires
that the priest not disclosed under any circumstances whatever's learned
(06:14):
in the confessional. And over the centuries, priests have suffered
martyrdom as a result of their maintenance of the confessional seal.
So it's taken very seriously. A violation of the confessional
seal results in immediate excommunication for the priests that can
only be lifted by the pope himself. So it's a
(06:35):
long standing practice, both the confession and the protection of
the confessional seal in church teaching, and it's taken very seriously.
Speaker 4 (06:45):
Now, this is the first time a government where a
king has tried to break the seal of Confession, I mean,
from what I understand, I mean, I mean there's been
priests have had to give their law to protect the
seal of Confession. So obviously something very very important to
(07:07):
the faith, very central to the faith.
Speaker 5 (07:10):
So what did the state of Washington.
Speaker 4 (07:13):
Do that caused the bishops and priests some concern regarding
the sacrament of confession.
Speaker 6 (07:21):
Well, it's interesting actually going back to the time when
Washington Washington was a territory combined with Oregon, and then
when it split off, it had it enshrined in its
laws both during the territorial stage and when it first
became a state of protection for the priest penitive privilege,
which would protect not only Roman Catholic confession, but any
(07:42):
other faith that likewise recognized a confidentiality around confession or
communications with clergy, and that had mostly been the law
in the state of Washington, with a brief period of
exception in the mid twentieth century. Then in May of
(08:02):
twenty twenty five, the governor signed into law SB fifty
three seventy five, which sought to require priests to become
mandatory reporters of child abuse and neglect learned anywhere, including
in the confessional, without exception and without regard to need.
(08:25):
In the particular case, it was just a mandatory requirement
that any clergy and clergy were singled out by the
law provide a report if they had reason to believe
that there had been child abuse or neglect, and so
that's obviously a problem. It's inconsistent with church teaching.
Speaker 4 (08:45):
Now, it's my understanding that the church had been was
very supportive of the law. What are the parts of
the law that the church was supportive of and what
were the what was the main issue that the priests
and the bishops had with the law, you know, because
(09:09):
it seems like they were supportive of it, but they
had the one particular issue and can you talk a
little bit about that distinction.
Speaker 5 (09:17):
Yeah.
Speaker 6 (09:17):
Absolutely, the churches had policies that are actually more imposed
greater requirements on priests to report than the law in
Washington had required up through twenty twenty five. So the
church has taken this very seriously and has imposed its
own reporting requirements. And the church was fully supportive of
(09:38):
the law to the extent it required priests to report
with the one exception of the confessional, so that they're
fully they had already been according to policy reporting. They
were supportive of a law that would require reporting. What
they were seeking was a carve out for the one
instance in which their faith doesn't allow them to report,
(09:58):
which is for information learned solely in the confession.
Speaker 5 (10:03):
All right.
Speaker 4 (10:03):
So on May twenty ninth this year, you and the
team at Wilmer Hale and some folks from First Liberty
and the folks from Beckett joined forces to represent Archbishop
Etchen and Bishop Tyson, Bishop Daily, and the auxiliary bishops
and priests and filed suit against the Governor of Washington,
(10:27):
the Attorney General of Washington, and for good measure, every
county prosecutor in the state of Washington. Why did you
sue every county prosecutor in the state of Washington.
Speaker 6 (10:40):
Well, because what we have to do is sue the
people whose actions can be enjoined in a way that
would provide us with relief. So the primary enforcers of
this law would be the state and count or the
various county prosecutors, because the statute attaches criminal penalties to
the failure to make the rapport, and the county prosecutors
under Washington state law are the ones who have primary
(11:02):
authority for bringing those criminal cases. But the governor and
the Attorney general also have some enforcement authority, some criminal
enforcement authority in a residual basis if a county prosecutor
can't or won't bring a case. And so we had
to sue the parties that we needed to enjoin in
order to provide our clients with relief.
Speaker 5 (11:24):
Yeah, that's pretty common.
Speaker 4 (11:27):
Did that in Texas years ago as well on a
different case. But so let me let me ask you.
I just want to make sure I understand what. So
what was the objective of the lawsuit? What do you
what were you what are you trying to achieve with
the suit.
Speaker 6 (11:43):
So we were asking for a declaration that the statute
was unconstitutional as applied to the Roman Catholic Sacrament of Confession,
and an injunction against its application with regard to statements
learned solely in the in the Catholic Sacrament of Confession.
Speaker 7 (12:01):
So we were very narrow.
Speaker 6 (12:03):
We were bringing an as applied challenge, not a facial challenge,
and we were seeking that the statue being joined only
as applied to Roman Catholic confession because our clients were
solely Roman Catholic.
Speaker 4 (12:16):
Well, so, in bringing this lawsuit, what were the arguments
you made? I mean, you've alluded to it, you know,
in terms of it being unconstitutional. What were the arguments
that you made in the lawsuit that the laws is
a violation of the Constitution.
Speaker 7 (12:37):
So we brought a number of claims.
Speaker 6 (12:38):
Our first and primary claim was brought under the free
exercise clause of the First Amendment, as incorporated by the
Fourteenth Amendment against the States, and so the argument was,
as your listeners may recall, going back to Employment Division
versus Smith, the Supreme Court had said that laws of
religion religious conviction doesn't exempt you from laws of general applicability,
(13:01):
but if a law is not generally applicable, or if
it is not neutral toward religion, then it's subject to
strict scrutiny. And what we had here was a law
we argued that was neither neutral nor generally applicable. Not
neutral because on its face it singled out clergy, and
there were statements made by various legislators in the course
(13:21):
of adopting the law that it was intended to target
a Roman Catholic confession. So we argued it wasn't neutral
on its face, and we also argued that it wasn't
generally applicable. So there's not in Washington State, for an example,
a statewide obligation for anyone and everyone who receives credible
allegations of child abuse to report it required only clergy
(13:46):
to report. So, for example, you could be standing in
your front yard and see your neighbor abuse their child,
watch it with your own eyes. You'd have no reporting obligation.
But if you heard about it secondhand from somebody and
the confessional, you would have an obligation to report. And
so the law did not create a generally applicable obligation
to report in response to the issue that the state
(14:12):
was rightly concerned about. I mean, we're all concerned about
child abuse and neglect, but they had not imposed a
generally applicable response to that.
Speaker 4 (14:20):
That was our primary Well, let me ask you. They
lawyers were lawyers mandatory.
Speaker 6 (14:28):
Reporters, so there was car vouts for some lawyers.
Speaker 5 (14:35):
Yeah, talks a little bit about that.
Speaker 6 (14:37):
Yeah, So, as a general rule, lawyers were not a
mandatory reporters, but some personnel at universities were mandatory reporters.
Where lawyers may be employed, but then there was a
car vout for some lawyers at the universities, and so
you had just this what we called sort of this
Swiss cheese effect of some people had to report, some
(15:00):
people that some employers had to report, except those that didn't,
and so you just had this patchwork of reporting obligations,
and the state had lots of reasons why they thought
that those that patchwork made sense. And the answer is
that that's interesting, but it doesn't change the fact that
it's not a law of general applicability. You can bring
up your reasons under the strict scrutiny test, claiming of
(15:23):
a compelling interest and narrow tailoring to that interest, but
on the question of whether or not it's a generally
applicable law, the patchwork of obligations and exemptions made it
not generally applicable.
Speaker 4 (15:35):
Yeah, you know, there's been a lot of controversy recently
about employment division versus Smith. I mean, there's been some
Supreme Court cases that have taken some shots at overturning
employment division versus Smith. But it always seems that what
ends up happening is the Smith just gets narrower and
(15:56):
narrower doesn't go away, but it's it's it's getting thinner
and thinner. But this is a case in which there were, uh,
there was there was the argument that employment of division
versus Smith did not apply at all, and uh and therefore, uh,
(16:17):
you would go then directly to strict scrutiny. Just so
our listeners, and everybody does. Religious liberty might be tuning in.
What happens if employment division versus Smith applies. If it's
a neutral law of general applicability, what happens, what's the
what's the level of analysis after that?
Speaker 6 (16:37):
Yeah, So if if you're if if you're in a
situation where the law is not neutral and not and
or not generally applicable, and either is sufficient, then you
go into strict scrutiny, and the state has to prove
that they have a compelling interest uh and that the
law is narrowly tailored to achieve that interest. So if
the law is either over or under inclusive, it fails
(16:58):
the theric scrutiny test. It's not considered narrowly tailored to
that interest. And in this instance, just the example I
gave about the neighbor shows you that it's under inclusive.
And it's also over inclusive because the law required reporting
by priests, even if the information might otherwise be known
to the state. There was no there's no need element
(17:21):
to it. It's a universal obligation for clergy to report
if they learn in the confessional without regard to the
state's needs. The law is both under inclusive doesn't require
the neighbor to report, and over inclusive it requires priests
to report even when the police have other means at
their disposal.
Speaker 4 (17:35):
And if it is neutral and generally applicable, then rational basis.
Speaker 7 (17:39):
Rational basis review right correct.
Speaker 6 (17:41):
If it is neutral and generally applicable, then rational basis
review applies. So obviously the generally applicable neutrality question is
essentially decisive. Nobody ever survives the strict scrutiny.
Speaker 4 (17:52):
But well, that seems to have been at least the
pattern for the at the US Supreme Court and then
and also uh at the at the at the Court
of Appeals almost all of the time. So let's I
want to just kind of break down just a little
bit on the free exercise before.
Speaker 5 (18:11):
We move on to another argument.
Speaker 4 (18:13):
Uh So, so if the law is not neutral and
generally applicable, then you go to strict scrutiny. And and
now who has the burden after that? And uh and
and and what do they have to demonstrate if you
might be able to help us out with that?
Speaker 6 (18:30):
Sure, so the plaintiff has to demonstrate that the law
imposes some type of burden on their on their faith
sincerely held religious belief, So they have to show the
sincerity of their belief and that the law is compelling
to do them to do something or preventing them from
doing something contrary to their religious belief, their sincere religious belief.
(18:52):
If that burden is met, and there's rarely challenges to sincerity,
particularly when you're talking about it to millennia old faith
where this is well established in church teaching in that instance,
and the burden shifts to the defendants to satisfy the
strict scrutiny. Demon's point to a compelling interest that requires,
(19:14):
and not just compelling interests generically, but compelling interest in
forcing these particular plaintiffs to act contrary to their faith,
and then show that the law is narrowly tailored to
that compelling interest.
Speaker 4 (19:27):
Yeah, you know, Matt, one of the things I teach
at at the University of Texas there is a kind
of a part time adjunct professor. And one of the
ways of framing that question, that compelling interest question that
I like to kind of have them think about, is
(19:47):
it's not asking what's the government's compelling interest in whatever
the rule or regulation is. It's really what's the government's
compelling interests of not providing an exception to this person
right here in court today, and.
Speaker 5 (20:04):
To frame it if and when you frame it that way.
Speaker 4 (20:07):
And now I didn't invent that framing. Chief Justice Roberts
invented that framing and udv versus Gonzales dealing with the
Wasca Tea church thing there that where they were, you know,
drinking the schedule one substance drug tea. And yeah, you
(20:27):
have a compelling interest in prohibiting schedule one drugs, but
what's the compelling interest in not providing this particular church
here an exception and sort of kind of flipping it
in that way. That was an unanimous decision ad zero.
But Alito didn't participate because he wasn't on the bench yet.
But anyway, so what the government has this burden now
(20:50):
they're going to have to show up with compelling interest.
Speaker 5 (20:54):
What did they show up with?
Speaker 6 (20:57):
Well, I mean, they showed up with what you would
expect they'd show up with with, which is speaking to
the state's compelling interest in protecting children. But as you
point out that, well we can all agree that's compelling
and important, it's not the interest that satisfies the tests
because the question in this instance, under this test is
(21:18):
is their compelling interest in making these particular plaintiffs violate
the confidential seal? And the state then has to show
if there is that the law is narrowly tailored to that.
And as I said before, this law was both under
inclusive and overinclusive. Didn't require reporting by everyone who might
know about abuse, and required reporting even when there was
(21:41):
no need because the state already knew about the case
and had proof at their disposal.
Speaker 4 (21:47):
Yeah, and it's even narrower than now what we'd started
talking about before. It's just the sacrament of confession, correct,
And so it's narrow as to the people and narrow
as to the practice. And then why why do we
not have an exception for that? You know, one of
(22:07):
the things that I've always found fascinating. And I don't
know if you've sort of encountered this in your practice,
and you can tell us if you haven't, you know
what you what you think about this. But whenever you
have an exception, that then gets you out of employment
division versus Smith and into strict scrutiny. It's like that
exception is almost like this uh, this train with the
(22:30):
special battering ram on it because it takes you, it
plows the field for both getting out of Smith and
then also if you how can to be compelling if
you have exceptions, that's also a lesson from udv versus Gonsolees.
And then and then that that exception thing then drives
(22:51):
right into a least restrictive means. Now it just so
makes people go up to speed on strict scrutiny, on
strict scrutiny to government has the burden persuasion improof on
both prongs, and you've identified those as compelling interest, and
then that they're advancing it through that interest to the
least restrictive means. You know who has to win? Does
(23:16):
the government have to win either one of those or both?
Or how does that work?
Speaker 7 (23:20):
Both?
Speaker 6 (23:20):
So the government has the burden of proof and persuasion
on both the existence of a compelling interest and the
narrow tailoring.
Speaker 7 (23:27):
And I think.
Speaker 6 (23:29):
As I said, and you observed, that state can almost
never maybe never win that the court is emphasized, the
courts have emphasized, but the Supreme Court and the circuit courts,
it's a very rigid, stringent test, nearly impossible to meet,
and certainly no case in recent memory has survived that.
(23:51):
So the fight really does become about whether or not
the law is generally applicable and or neutral.
Speaker 5 (23:56):
Yeah, and so you know, you have the free exercise.
Speaker 4 (24:00):
Claim, and we talked about that. What's another claim that
you brought and tell us a little bit about that.
Speaker 6 (24:10):
Well, we developed a claim called what we called the
commandeering claim. So the idea behind our commandeering claim is
that the state was trying to take control of a
compelled speech, compelled speech by the church, compelled confession, and
(24:31):
use that compelled speech in a way different than the
Church had designed it, namely with its confidentiality, to achieve
something that the state could not otherwise achieve. In other words,
in the criminal context, as we all know, under both
the federal constitutions Fit Amendment and in this case, under
the Washington State constitution, the state can't compel someone to
(24:51):
speak about a crime. But the Church, through its sacrament
and its doctrine, does int that compel people to confess
their sins. But this the Church does that with a
promise of confidentiality. And what the state, we were arguing,
was trying to do was sees that confession that the
(25:13):
Church compelled strip it of its confidentiality and use it
for state purposes when the state could not itself compel
that speech. We called that a commandeering claim. And you know,
we think it's not been recognized previously, but sort of
the underlying pieces of it have been recognized, this idea
that the state used the church to accomplish the state's
(25:36):
own ends.
Speaker 4 (25:38):
So where would that argument be housed in in in
sort of constitutional jurisprudence, how would you where would you
put that?
Speaker 6 (25:49):
Well, we certainly put it in the First Amendment. I
think we view it as sort of the combination of
the two religion clauses. So in the same way that
the Supreme Court has recognized what we'll talk about in
a second, the church autonomy doctrine, as being a function
of both of the religion clauses, I think we would
say that our commandeering claim was again a function of
both clauses, that the state it created an establishment issue
(26:12):
because the church, the state is seizing control in some
way of a church sacrament, and yet it's changing the
sacrament in a way that it affects its exercise by
the participants. So it really runs runs a foul of
both of the religion clauses.
Speaker 7 (26:27):
Of the First Amendment.
Speaker 4 (26:28):
Yeah, it kind of reminds me of the the when
when when President Jefferson was was was responding to the
Danbury Baptists who had written him a letter saying, hey,
you know, you know, hopefully we'll kind of basically continue
to have religious liberty over here, right, is all going
to be okay? And he talked about the wall, his
(26:50):
wall of separation. You know, I think the razor wire
was pointing at the government, not at the not at
the not at the church. And and certainly that seems
to resonate that idea that he was talking about. That
letter resonates with the commandeering argument. So there's this thing
called the church autonomy doctrine. You guys brought that as
(27:13):
a claim. And you know, now the fedsock hosted a
webinar on the church autonomy doctrine back in July twenty third,
twenty twenty five. If it's a new doctor to you,
if it's I'm familiar with the phrase church autonomy doctrine,
you can go pull that webinar up. We're not going
(27:34):
to rehash everything from there, but you know, give us
like the sixty second version, Matt of what is this
thing called the church autonomy doctrine, and like where does
it come from?
Speaker 6 (27:45):
Yeah, So, dating back to the mid eighteen hundreds, in
a case called I think Watson b. Jones, the Supreme
Court recognized that with regard to matters of internal church governance,
the courts had no say, and that initial statement in
Watson had been developed over the years in a case
(28:06):
called Serbia Orthodox Church, and then more recently in the
employment the context of employing ministers, so our Lady of Guadalupe.
Speaker 7 (28:16):
As one case more recently.
Speaker 6 (28:18):
And so the gist of it is that when it
comes to matters of internal church governance, so things like
church discipline or employment of ministers, that those type of
things are governed by the church and the state is
absolutely prohibited from regulating them. And here what we had,
we argued, was a matter of church governance, a matter
(28:41):
of church discipline. Roman Catholic teaching is that the priest
serves as in part the judge in the administration of
the sacrament and provides mercy to the participant as well
on God's behalf.
Speaker 7 (28:53):
And so.
Speaker 6 (28:55):
This governance activity has rules around it establish by church doctrine.
And what we were arguing was that what the state
was trying to do was violate the church's autonomy by
inserting itself into that governance function, uh, and rewriting the
rules so to speak, changing literally changing how it's administered
(29:17):
by law. And so we argued that that violated the
church autonomy doctrine again a function of both the the
religion of both religion clauses of the First Amendment.
Speaker 4 (29:28):
Yeah, in the statue kind of had a quirky thing about, uh,
you know that dealt with people that were both receiving
confession but also supervising, Uh, you know, the supervision component
of that of supervising others who would be potentially receiving confession.
And obviously you know you have yeah, you have yet
(29:52):
a multitude of clients within a hierarchical structure. Some of
them are are are those are those supervisors. So so
if you know you have this law, it's coming to
effect in July, or was going to go into effect
in July of this year. It was May twenty ninth
when you filed, you filed something else along the lines.
Speaker 5 (30:13):
You filed a pulmonary injunction motion. Tell us, tell us.
Speaker 4 (30:17):
About there was an argument. Tell us a little bit
about the argument for the pulminary injunction motion.
Speaker 5 (30:25):
You know how did that go? And who all was
a participant there?
Speaker 6 (30:31):
Well, the oral argument was on a Monday in Tacoma,
and we were prepping in a moot court on Friday
when we got a set of questions from the court
that the court wanted us to address at the hearing,
and one of them was something like, and I'm paraphrasing
but only slightly plain, us argue that the law commandeers
(30:55):
their religious practice. Isn't that correct? So we felt pretty
good about that, so we decided over the weekend rather
than wait until Monday to provide responses at the oral argument,
we would write up responses. So the court had I
think maybe four questions for both parties and then three
or four questions for us, and like nine questions for
(31:16):
the state. So we prepared written responses to the ones
that were to jointly to both parties and to ours
and filed them on Sunday night. And the result of
that was when I got out to oral argument on Monday,
since it was my motion, normally I, on behalf of
the plane iff would go first, and the Court said,
(31:37):
I think I've got your position. Let's start with the state,
so it was an unusual structure where the most of
the argument was by the party opposing. I got off
and offered some brief comments and rebuttaled very brief because
the judge had signaled that he didn't want to hear
a whole lot more and when you appear to be winning,
you should stop talking, and so I said very little.
(32:00):
And we were optimistic based on the judges' comments that
things were headed our way. But the state had focused
most of its argument on standing because we were bringing
a p reenforcement challenge, and they were arguing that it
wasn't ripe, but that we wouldn't have we didn't have standing,
and that's where they focused most of their discussion during
the oral argument.
Speaker 5 (32:19):
Now, something happened to the county.
Speaker 4 (32:21):
The county prosecutors did not present during the priminary injunction hearing.
Speaker 6 (32:28):
What happened to them before we showed up on that Monday,
we had an agreement with all the county prosecutors that
they would stipulate to the entry of a preliminary injunction
and just let the state, the government specifically the governor
and the Attorney General, argue the case, and that they
would live by whatever result came about with a permanent
(32:50):
if a permanent injunction came about. And so we had
all literally every single one of the county prosecutors that
already stipulated to a preliminary injunction, which the court entered
before we even started.
Speaker 4 (33:01):
Now, you know, obviously I saw the questions that Judge Estudio,
but forth, I'm always impressed by these disrect court judges
that have these massive dockets of you know, just I mean,
you know obviously that that's a major metropolitan area Seattle, Tacoma,
(33:22):
but judges all over the country, these distrect court judges
that have you know, huge you know, hundreds of criminal cases,
tons of complex civil cases, and the amount of preparation
and the types of questions that a lot of these
judges will ask. And I always find it very impressive
how much time they're willing to spend on it on
(33:43):
a case that on a topic that they're not going
to see very often. I mean, I was impressed by
by his by his by his questions, the insight, just
the study that he must have done on the free
exercise clause, on this ackerman on church autonomy. He was
just really evidence a lot of hard work, is that?
(34:07):
I mean, you know, did that seem unusual to you?
Very seemed unusual to me, even given the fact that
I've always been impressed with how well judges dial into
this issue they see only occasionally.
Speaker 6 (34:19):
Yeah, I mean, certainly you think about just the time
crunch in a preliminary injunction motion. Right, you're talking about
bringing a case briefing the merits of it very quickly.
The whole point is we need emergency relief before the
law takes effect on July twenty fifth. So the judge had,
I think, after our reply brief was filed, had like
maybe ten days roughly, maybe a little longer than that
(34:42):
to consider the papers and clearly understood the issues, understood
not only the facts, but had read the relevant cases,
had sort of honed in on what the pressure points
were and asked the insightful question. So, you know, as
you said, it's always impressive when a judge can dive
into a topic area where he or she doesn't regularly practice.
Speaker 7 (35:04):
I don't know how many. I don't We didn't.
Speaker 6 (35:06):
Find any other religious liberty cases that just Judgestedio had
had before, and he hasn't been on the bench that long.
I think he was a pointed by judge President of Biden.
So it was a very quick turnaround and he was
very much on top of the issues.
Speaker 5 (35:22):
Yeah, I mean it was a different judge.
Speaker 4 (35:24):
It was the same courtroom as the origin story for
Kennedy versus Bremerton. But but but definitely judges Dido is
you know, really demonstrated that you know, he's he's he's
pulling all on iters or something. He's working pretty hard,
uh to be able to prepare that well on a
(35:47):
topic you're not going to see very often. So what
happened after that? You got to you got to ruling.
How long did it take and and what did it say?
Speaker 6 (35:57):
Well, we argue the case on Monday, and we we're
at a conference, a religious liberty conference. Hiram and I
were together on Friday when we got a ruling and
the judge granted our preliminary request for a preliminary injunction
find finding that we were likely to succeed on the merits.
He found that the law was both not neutral and
(36:17):
not generally applicable, so subject to strict scrutiny, and he
ruled in our favor. He didn't reach the other arguments
that we made, he didn't need to. And obviously that's
as much as you'd like a judge to affirm every
one of your arguments as genius. The judge, I think
took the proper approach of being deciding what he needed
(36:40):
to decide and not more for purposes of the preliminary injunction,
and so he ruled simply on that ground.
Speaker 4 (36:48):
Well, so pulminary junction is in place, which means a
law obviously does not go into effect pending the case.
Speaker 5 (36:58):
Where do you think this case goes from here?
Speaker 6 (37:01):
Well, we hope we win, as we always as we
always do. We think that we're correct at the oldest
known religious liberty case in the country's history, people be
Phillips from eighteen twelve recognized protection for the sacrament of
confession and it's confidentiality. So we think we have more
(37:22):
than two hundred years of history on our side here,
legal history, and so you know we're optimistic, but you know,
stay tuned.
Speaker 5 (37:31):
Yeah, no, no, that's exactly right.
Speaker 4 (37:34):
Well, Marco is going to come on board now from
FEDSOC and he's going to help us field some questions. So, Margaret,
do we have some questions in the queue and if so,
let's get those fired up.
Speaker 5 (37:48):
Yeah.
Speaker 2 (37:48):
Absolutely, And just to remind you to our audience, if
you have questions, you can enter that in the Q
and a function at the bottom of your zoom window.
Kevin Snyder asked what argument did he use to get
past ripeness for this pre enforcement challenge?
Speaker 5 (38:03):
That's great? What what? What? What? What? What did you
do for that?
Speaker 6 (38:08):
Well, I mean, we had a number of things we
were able to appoint to. So the first of all
was the state was not willing to disclaim that they
would enforce the law, and that is one of the
primary factors under Ninth Circuit case law, the unwillingness to
disclaim enforcement. We also had the fact that the law
was specifically enacted to a target the Roman Catholic Church. Uh,
(38:34):
you know, to to target clergy in particular. But there
was certainly references to the Roman Catholic Church in the
legislative history, and so you know, part of our argument
was the state claims they have compelling interests, they passed
this law to address clergy and that and they won't
say they won't enforce it. Uh, that sounds pretty ripe.
(38:55):
We had also, on top of that the fact the
state Attorney General had been conducting an investigation which he
was trying to inquire into whether or not the church
was reporting with regard to abuse cases, and so sort
of all of that together, particularly in addition including the
ongoing state attorney general investigation, and those other factors were
(39:16):
sufficient for the court to conclude the case was ripe.
Speaker 4 (39:19):
Yeah, man, I got to imagine that if you're showing
up the court and you're arguing, we have a compelling
interest as to these particular plaintiffs right here and also
in another section of the brief, but their claims are
not right that somehow doesn't necessarily jive, and something that's certainly.
Speaker 5 (39:41):
Got to give on that.
Speaker 6 (39:42):
Yeah, i'd also say, I mean, we had each of
the priests had also signed a sworn declaration saying that
A they take confession and b they won't comply with
the law. What they couldn't say is sort of what
the content of those confessions are, because that would itself
violate the sacramental seal. But they said, we take confession,
we won't follow the law, there's an ongoing investigation, you
(40:05):
won't disclaim enforcement, and you pass the law because of
us and that together the court found was sufficient and
it was clearly sufficient in a non circuit case law
to establish standing.
Speaker 5 (40:17):
All right, Marco, what else do we have?
Speaker 2 (40:20):
Lee McGrath asks how other denominations objected to the law
and point out that Eastern Orthodox, Lutherans and Anglicans all
have traditions of private confession.
Speaker 7 (40:31):
Yeah, yes, yeah, yeah.
Speaker 6 (40:33):
So the Orthodox Church of America has filed their own lawsuit,
and initially filed in the Eastern District of Washington, are
now transferred to the Western District. They are the only
other tradition that I believe to date has filed a lawsuit.
I am not aware of one by the Lutherans or
any other churches.
Speaker 5 (40:52):
And from what I understand, they have met.
Speaker 4 (40:55):
Tell me if I'm wrong, but they have an agreed
pulmonary injunction with the with the state as a result
of the preliminary injunction that that you obtained prior to that.
Speaker 6 (41:06):
Correct, So essentially, after we obtained a preliminary in junction,
they reached an agreed preliminary injunction that was essentially identical
to the one that we had reached with the county attorneys.
Speaker 2 (41:17):
All right, Marco, what else we got he Overstreet asks
does the state intend to appeal?
Speaker 6 (41:23):
And if so, why, Well you would have to ask
the state.
Speaker 7 (41:28):
They have not appealed and what they intend to do.
I don't know.
Speaker 2 (41:34):
An anonymous attendee point so that Bob Ferguson is a
very smart and capable lawyer and also a Catholic, and
does does him being a Catholic play into the argument
for targetedness and kind of what is what is your
understanding of the interplay there?
Speaker 7 (41:57):
I don't believe.
Speaker 6 (41:58):
I mean, we certainly referenced the various statements that were
made during the legislative process. I think one person in
particulars had said something like one legislator had said something like,
you know, the church can change its rules if it
needs to to comply with the law, and we're like, well,
they're not rules, Uh, it's doctrine, and no, you can't
(42:19):
just change it. So I think that there were, certainly,
you know, to be to be gracious, some degree of
misunderstanding of what the church's teaching was and its centrality
by those passing the laws, at least by some of
those passing the laws.
Speaker 3 (42:38):
And to kind of further address the question.
Speaker 2 (42:43):
Do you do you think he was aware of the
unconstitutionality of that law, and.
Speaker 3 (42:52):
Uh, very capable lawyer.
Speaker 7 (42:56):
I think.
Speaker 6 (42:56):
I think what I would say is, I don't assume
that any and assume the worst about state officials, that
they act intentionally trying to violate the constitution.
Speaker 4 (43:06):
It's always been been my experience is that most most
state officials are trying to do what they think is right,
what they think is the best, is the best thing.
And that's one of the great things where we have,
you know, we have our system of laws.
Speaker 5 (43:22):
We get to test those those judgments.
Speaker 4 (43:25):
Marco, do we have I think we have time for
maybe a couple more questions, what do we have any more?
Speaker 2 (43:33):
Pete Overstreet again just mentions that he's a capolican, a prosecutor,
and he's very fond of the commandeering argument. And if
is there anything you want to more you want to
say on that argument.
Speaker 6 (43:49):
Other than that I came up with it in the shower.
Now it was really sort of trying to put together
various pieces to be in all seriousness. I mean, I
it seemed, you know, there's something at a gut level
wrong with this right the state can't compel people to
speak and yet they're trying to use the church's ability
(44:09):
to compel people to speak and at a gut level. Initially,
as we started thinking through this, it's like there's something
that seems wrong with this, but like what is it?
And it was a function of sort of thinking about
if you remember back that Supreme Court New York versus
the United States, the commandeering case that said the United
States can't commandeer the functions of a state to carry
(44:30):
out the federal government's functions or the federal government's policy.
So that's kind of that was part of the idea,
sort of that why I call it commandeering, And then
we were able to look at some law journal articles
and about kind of historically what the establishment clause prohibited,
and kind of we put those pieces together.
Speaker 7 (44:52):
Into this commendeering idea.
Speaker 4 (44:56):
Yeah, well, it's obviously it's a unique fact pattern, right.
It's it's pretty rare for the government to enact a
law that would that's requiring religious or people of faith
to do something on the government's behalf in a process
(45:17):
that would not exist but for the faith's doctrine. So
the faith creates somebody's faith or a group of people's
faith creates a need to do a particular act and
then for the government to then say, okay, now we
need you to do that act on our behalf. That
(45:38):
that's a unique fact pattern for this Well listen, I
just I say on that.
Speaker 6 (45:43):
I think that's a very important point, right, which is
that the state this speech only exists because of the
religious faith. Right, all the other evidence in the world
that exists about this child abuse and neglect is still
available to the to the prosecutor. The only thing that's
unavailable is something that the religion creates and protects, and
(46:08):
so it's not in any way impairing otherwise the ability
of the state to prosecute, investigate, and prosecute this crime
that would have existed absent this religious practice. And I
think that's important to recognize that the state can still
fully investigate these and should and prosecute them to protect children,
(46:28):
and there's a way to do that while also protecting
this religious practice.
Speaker 5 (46:33):
Yeah, I think I'll wrap up with this.
Speaker 4 (46:35):
You know, look, it's religious liberty cases are always probably
on their best footing when they're asking for narrow relief,
and because of the narrowness of the relief being sought,
here wasn't a blanket exemption. It was just for the
seal of confession that that itself typically lends itself towards
(47:01):
the religious claimant prevailing. Well, listen, Matt, I want to
thank you so much for coming and being part of
the webminar giving us an update on this important case.
We'll keep track of that, see what's going on, and
as things develop, have more updates for our listeners and
(47:23):
the folks that are following along. So with that, Marco,
I'll flip it back to you to close us out.
Speaker 2 (47:30):
Well, I want to second that thanks for your time
and expertise today, both of you. I would also like
to thank the audience for joining us. We greatly appreciate
your participation. For information more upcoming events, visit our website
or all major social media platforms at fed SoC. On
that note, we are a journed.
Speaker 1 (47:51):
Thank you again, thank you for listening to this episode
of fed SoC forms, a podcast of the Federal Society's
Practice groups. For more and from about the Federal Society,
the practice groups, and to become a Federal Society member,
please visit our website at fedsoc dot org.
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