Andrew Seidel: American Crusades & the Supreme Court

Refuse Fascism Episode 131

Sunday Oct 23, 2022 9:05PM

Andrew Seidel 00:00
There is a well funded powerful network of Christian nationalist organizations and judges that is working to weaponize the First Amendment. Together with the conservative justices on the Supreme Court, they’ve been waging a crusade to weaponize religious freedom, seeking to turn that protection of religious freedom that’s enjoyed by all of us into a weapon of supremacy and privilege for the few. They’re setting out to make America a Christian nation and warping religious freedom as an attempt to bring us all under their yoke…I have hope that we will win in the end because they are fighting only for themselves and where they are selfish, we are selfless.

Sam Goldman 01:00

Welcome to Episode 131 of the Refuse Fascism podcast, a podcast brought to you by volunteers with Refuse Fascism. I’m Sam Goldman, one of those volunteers and host of the show. Refuse Fascism exposes, analyzes, and stands against the very real danger and threat of fascism coming to power in the United States. In today’s episode, we are sharing an interview with Andrew Seidel, author of “American Crusade: How the Supreme Court is Weaponizing Religious Freedom.”

But first, thanks to everyone who goes the extra step and rates and reviews on Apple podcasts, shares and comments on social media or YouTube. It helps us reach more listeners, and of course we read every one. Here’s one from YouTube, this past week: Punks for Progress wrote: “We rarely, if ever, miss a weekly episode.You bring on the most well informed and active guests. I’m always more educated after an episode. Thank you, comrade.” Thank you, Punks for Progress.

Also, I wanted to get back to Chris. Chris commented a couple weeks back about Episode 92, Coco Das’s interview with Thomas Zimmer, commenting: “This is definitely my favorite guest on the podcast. I would love to see another interview with him.” Well, Chris, so would we. We’re working on it. Stay tuned, we should have him back on in the next few weeks. After listening to today’s episode, go help us find more people who want to refuse fascism by rating and reviewing on Apple podcast and encouraging your friends and family who listen to do the same. Subscribe/follow so you never miss an episode, and of course, continue all that sharing and commenting on social media.

Today’s interview is a substantive look at the theocratic stacked Supreme Court and its fanatical pursuit of enshrining Christian power. There are real changes in the world that the Christian fascists are responding to; changes that in themselves undermine what up until now has been a de facto white Christian domination of US politics. But in and of themselves, those changes won’t lead to liberation from that domination. Even if white Christians do become a minority in this country as is projected. It’s not as though there is never been an entrenched minority that rules brutally over an oppressed majority or over divided oppressed groups.

Demographics are against the Christian fascists, both the real visceral, palpable harm that they are doing as well as the deeper threats of what they are building towards, those do cause people to rebel against it in certain ways, and to some extent, “swelling our ranks”, which we’ll have more to say about in a second. But it also does what it aims to do. It builds their power and swells the ranks of the fascists. People don’t want to confront that this country is full of fascists. To take very immediate examples, anti semitism is coming back full force from leading fascist figures, and it is not split their base. If anything, it is solidifying it.

Meanwhile, whether Doug Mastriano, for example, wins or loses, millions will vote for outright anti-semitism and Christian fascism next month. And not just in the middle of the state; in Philadelphia, and Pittsburgh, and other liberal strongholds as well, the fascists have played a long game. But more foundationally, this fascism is deeply rooted in this country. The rules of this system provide low hanging fruit for fascist takeover, and fascism speaks to the needs of the American empire in the compounding crises that their system faces today.

Radical change is coming, whether it be radically reactionary or radically liberating, is still undecided, but it is not passively waiting. Which brings me back to: What is the opposition to fascism that people do flock to when fascists kill, hurt, violate, dehumanize whole sections of people? Thus far, people have flocked to an “opposition” that largely hasn’t been able to bring itself to say ‘fascism’, let alone fight it. An opposition that for decades didn’t even say the word abortion, but instead platformed a program, a deadly program, of safe, legal and rare. An opposition that framed black boys as super predators. An opposition to fascism that has had enormous power and refuse to codify Roe or strengthen the Voting Rights Act or follow through on Brown v. Board of Education.

We can’t Tea Party our way out of this. Think about it. As a prime microcosm of their “long game,” fascist billionaires astroturfed thousands of local elections to break down conservative norms and whip up fascist violence with the backing of a huge media conglomerate, in order to transform the Republican Party and prepare it as a streamlined fascist bludgeon. That can work for their side, but not for liberation.

We don’t have a lot of time y’all. We don’t have 40 years to wait. What these fascists plan is genocidal. For all the women whose lives are endangered and diminished by abortion bans. All the LGBTQ people who are now in the crosshairs of a fanatical Christian fundamentalist war that aims to erase them from existence. Do they have time for a long game? Open white supremacy, science denial, accelerated climate destruction, and vicious American chauvinism heaping hell on immigrants: is 40 years really an option?

I posit that it is a deadly approach to put all our hopes and the future in the process of a long game, elections or judicial processes. This will only cede the ground to the Christian fascist movement. Exhibit: a look to the reproductive rights movement, which had its hands tied for decades in the aim of getting elected. It has paved the way to the very dangerous place we stand now we’re over 22 million women and others who can become pregnant have lost the right to abortion, and the GOP is going for a full nationwide abortion ban. While the road will be difficult and paved with sacrifice, and yes struggle, it need not be long, nor will it be destined towards victory.

History shows us, including history in this country, that change including positive change can happen quite quickly, especially when people break away from playing by the politics of the possible, sticking to the channels of elections only. The rights now being taken away, or concessions made to the great social upheavals of the 1960s. Let’s be real, it wasn’t the result of work over decades to elect legislators but a generation fighting outside the confines of the system and increasingly against it that won those victories. It was the students burning draft cards and willing to go to jail for draft evasion. It was the urban uprising and university shutdowns. The rights won were the result of upheaval, creating the kind of multi-front all out political crisis that had those who rule where their system was losing its international standing as “the greatest democracy in the world” and its legitimacy at home.

Now, in reaction to these concessions, and accelerated by the globalization of capitalist exploitation, a fascist movement has been built up over decades, led by very powerful sections of those who rule who are completely committed to changing the form of rule to an unabashed dictatorship, overt brutality. Key in this fight has been their efforts to overturn abortion rights, which with Roe now overturned, they’re winning. They’re doing this because of what abortion rights have opened up in terms of women’s ability to participate fully in society and because opposition to abortion has long been that gateway to a broader program to violently reverse all the social gains since the 1960s.

Doubling down on what I feel is a losing approach: that of slowly bending the arc of history to justice when the Republicans have purged their ranks, become battle tested, and become now a fully fascist party, is a fast track to catastrophe. The fascist GOP is tearing up the rules, ripping the country apart gleefully trampling over people’s rights and any pretense of democracy for all. The fascist party is telling you that if they lose the next election, they will not fail at having Republican legislators decide the election instead, and if that doesn’t work, they’ll take it by force.

Unjust laws should not be accepted, they should be defied, they should be fought. It’s on us to refuse counsel to lay our rights down to, yes, refuse the concept of painless progress, and to most essentially, refuse fascism. We should take inspiration, not from those who keep us passive demobilized and blinded, but from the literally millions of women all over the world who have taken to the streets, including those from across Latin America in the Green Wave, where they are decriminalizing abortion, to right now, in Iran, where young women and, yes, many others, are rising up against theocracy; doing so with a danger of death looming overhead. It is a time to act with daring, not only because it is the only morally just thing to do, but because we can change what is possible through our actions together.

I feel our biggest hope is threefold. The majority of people do not want this, there are things coming that will shake even the most domesticated opposition, and there is a whole other way that the world could be.

With that, here’s my interview – very excited to share – with Andrew Seidel. I am really excited that now, in my opinion, horrifying new SCOTUS term is now in play, that we are getting to talk with somebody who’s spent a great deal of time care and energy into walking us through the danger that we face, which is an extremely dangerous, ominous Christian fascist movement that has impacted the state legislators across the country has seized power in many, many ways continue to hold the reins, and has remade the Supreme Court in it’s very horrific image.

I’m really excited to welcome Andrew Seidel. Andrew is a constitutional and civil rights attorney. He’s the author of two books, The Founding Myth: Why Christian Nationalism is unAmerican and American Crusade: How the Supreme Court is Weaponizing Religious Freedom and it’s that book American Crusade: How the Supreme Court is Weaponizing Religious Freedom, that’s the topic of today’s conversation. Andrew is a senior correspondent at Religion Dispatches, a prolific author of op-eds and scholarly articles. He is the VP of strategic communications at Americans United for Separation of Church and State, which is the largest organization for fighting for that founding principle. Welcome, Andrew.

Andrew Seidel 12:50

Thank you so much for having me on. It is a pleasure to be with you.

Sam Goldman 12:55

Your book title starts with American Crusade. [AS laughs] You don’t mince any words in the book. What is this crusade that you speak of? Who are these Crusaders?

Andrew Seidel 13:09

We have long had in this country religious freedom, and it has been this shield, this hallowed protection for all of us against government overreach, or the minorities protection against the tyranny of the majority. Religious freedom has long been this right that we possess equally, or are striving to possess equally at the very least. It’s embodied in those words that are etched into the front of the Supreme Court: Equal Justice Under Law. Religious freedom has been supported and guaranteed by a strong separation of church and state, but not anymore.

There is a well-funded powerful network of Christian nationalist organizations and judges — we’re talking about a billion dollar shadow network that is working to weaponize the First Amendment, seeking to turn that protection of religious freedom that’s enjoyed by all of us into a weapon of supremacy and privilege for the few. This network of faithful and well-funded activist groups are the Crusaders. Together with the conservative justices on the Supreme Court, they’ve been waging a crusade — truly a crusade — to weaponize religious freedom. I say crusade because this is a war of conquest, not of land, but the Crusaders are looking to conquer our Constitution and, as you said, to remake it in their image. They’re setting out to make America a Christian nation and warping religious freedom as an attempt to bring us all under their yoke, under their rule.

Sam Goldman 14:44

Oftentimes, people say, Well, isn’t freedom of religion important? Isn’t that such at cornerstone of this society? How is what they’re going for different than those who advocate or promote religious freedom?

Andrew Seidel 14:59

It’s such an important question, because when I say they are weaponizing religious freedom, I really do mean, just that: They are litigating the legal meaning of religious freedom as a constitutional right in case after case, and in the process, they are redefining that protection, they’re perverting its meaning. The Crusader’s “religious freedom” cases are superficially about Christian crosses, and veterans or playgrounds and skinned knees, or private school vouchers, or bakeries in gay weddings or coaches that just want to pray. But really, they are about privilege and supremacy, literally about privileging the “right” kind of conservative Christian over everyone else. Their goal is to use religious freedom to elevate conservative Christianity above the law.

Legal questions of religious freedom, when religion and the law collide, I actually don’t think they are that hard for us to sort out. In fact, I think they’re pretty easy. Sometimes religious freedom questions can be emotionally fraught, especially if they involve children, but as part of the crusade, the Crusaders have misled and confused, deliberately, so many Americans about where we draw the legal lines for this founding American principle. So I really do think that these religious freedom cases, they may not be the simplest questions, but they’re not very hard either.

Historically and legally, we draw three basic lines, and I go over those lines in the book and they’re actually, they’re really, really simple. The first is that we distinguish between action and belief: Your right to believe is absolute. Your right to act on that belief is not. So I opened up “American Crusade” with several stories about drivers, letting Jesus take the wheel, literally doing that. Now, they are free to believe that Jesus will drive but the civil law can step in very clearly and say: No, you can’t do that. That’s reckless, we can fine you, we can take away your license. If you hurt somebody, you might be going to jail.

So your belief is unlimited, but action is limited. Which brings us to the second line. If it’s okay for the government to step in, when is it okay? The answer here is actually pretty simple, too: It’s where the rights of other people begin. Just as your right to swing your fist ends at the other person’s nose, your right to exercise your religion ends where the rights of others begin. Religion has never been — ever in the history of this country — a license to harm others or infringe their rights in any way. It is that line that we are seeing completely perverted and turned on its head. We are seeing these crusaders argue: Not only is my right to exercise my religion absolute, violating line number one, but I can also harm other people or violate their rights when I’m exercising my religion.

Then, the third line is the separation of church and state, which is also pretty easy. The short version is our government has no religion to exercise, and government officials can’t abuse government power and resources to promote their personal religion. In the book, I lay out these three lines and then I show how the court has warped, not just the lines and the law, but also facts and reality to help rewrite those lines in the last decade or so.

Sam Goldman 18:22

That was a really helpful breakdown and a part that I really appreciated in your book. I had to take this law course and a big, big part of it was religious freedom. It was surprising how people viewed what is a school’s role and what isn’t a school’s role — what would be allowed and what wouldn’t be allowed and why. I really appreciate that kind of guardrails that you were putting up in your book to help people delineate this. I want you to explore a bit.

What do you think were the biggest turning points in this evolution from a minority that existed and has been around for an incredible amount of time to an empowered and in-power movement that has seized the highest court in the most powerful country in the world? Were there certain moments that you think were pivotal in that when we think about court cases? Were there particular cases that really solidified that movement?

Andrew Seidel 19:28

Yeah, I think there were. Let me just say, to your point about having to take these classes and how they can be kind of cumbersome and frustrating, this is one of the things I really tried to do in “American Crusade” was, I think, legal professionals, especially when we’re talking to lay people, we get buried under legalese and civil procedure and judicial philosophies and levels of scrutiny and precedent and all that stuff. I think sometimes we hide behind them. It’s often better to just cut through all of those trappings and look at the core of the case, to get back to the basics, to cut through all of that b.s. that lawyers and judges build up around their profession.

So “American Crusade” does that and talks about each of these cases while avoiding legal jargon and case names, and even legal tests, framing it in these three lines, which you really can find throughout our law. I wrote this book so that everyone can understand the threat and see just how radical and dangerous these crusaders and the Supreme Court opinions validating the crusade are. I think there are a couple of key cases throughout our history, and I do identify these in the book.

One of the cases is, I believe, kind of a case that launched this crusade really decades ago, and that’s Brown versus Board of Education. There’s so much that traces back to that case, especially as you mentioned, in the context of schools. The push to keep our schools segregated, really is the genesis of so much of what we see today, including the school choice school vouchers movement, it has direct roots in Brown versus Board of Education.

The fight to overturn Roe versus Wade has direct roots in Brown versus Board of Education. There’s the story of this meeting where the religious right did not want to be seen any longer to be advocating for segregation, so instead, they chose abortion as the wedge issue that they were going to impose on the country and the electorate. So I think that’s certainly one of the cases.

Another case that I date to is this 2010 case involving the Christian cross in a million acres of public land. And by any measure, that’s unconstitutional. You can’t have a religious monument on public land. This is very clearly a Christian monument and the court had declared that in the past. You have this very strange moment — and this is after John Roberts is Chief Justice and after Samuel Alito is put on the court, and this is sort of like almost a tipping point for the court. Congress steps in when this cross is being litigated at the lower court levels, and Congress says: You know what, we’re going to transfer this tiny little piece of land under that cross to a private entity, with the purpose of keeping that cross standing, and if that private entity tries to take down the cross or stops maintaining it, then we get the land back. So the only purpose of this is a sham to allow a constitutional violation to remain intact, like a very clear violation of separation of church and state. And the Supreme Court says: Oh, yeah, we’re good with that. And this was a case that was brought by a couple of Crusaders, they litigated this.

These same groups litigate all of these cases, and I go over each one of them, as I discussed. That was really a watershed moment because it announced to the world that this Court was on board with the crusade, that Christianity trumped the Constitution when it came to this court. The crusaders saw that as this call to action — I liken it to the “Deus vult” that we actually saw at the First Crusade, where you have the crowd cheering “Deus vult, Deus vult, God wills it, God wills it.” That was the Deus vult moment for this crusade, and that was in 2010.

Then there is — this is not a court case — but as part of this crusade, we know that the Crusaders set out to capture our courts. That was this kind of parallel push that was going on. When Donald Trump won the presidency, he tapped into this undercurrent of Christian nationalism in a way that we’ve not seen in US history, at least in our lifetimes. There have been previous waves of Christian nationalism, but not recently. He tapped into it and won, and he gave them the judges that they needed to culminate this crusade. After that, it became clear that not only did the law not matter, but the facts didn’t even matter to this court. They want to decide these cases. They want to reach these results. That is one of the things that I believe I showed very clearly throughout the book.

Sam Goldman 23:51

I think that last point is incredibly essential. As someone who is not in the legal world at all, it was something that I don’t think I paid enough attention to when it started happening. I paid attention when Dobbs was taken. Yeah, it was a shock that Dobbs was even heard. That was like a shock for me. But I think there were many examples before that where we were even questioning why is this even being heard by the Supreme Court? And this term? I think there’s several of those such cases, some of which don’t come down to a question of theocracy, but some do.

Andrew Seidel 24:35

You’re really right, and I think you are not alone. Just about everybody, 99.99% of people were just like you, thinking the same thing. I’m in this space. I’ve been fighting this fight on the front line. So I was screaming that the overturning of Roe versus Wade was coming for years, and I was kind of surprised by how surprised everybody was, but I do get it. I think there’s a couple of things that contributed to this. One is: We hear about these cases as though they are standalone cases, as though they’re disconnected from each other and not part of this coordinated, top down push to tear apart the democratic fabric of our secular Republic. And they truly, truly are, right?

The Dobbs decision is really a perfect example. Not only does it have its roots in the religious right, and where they decided we’re going to overturn this rule, it also very clearly violates the separation of church and state. It is imposing one narrow religious doctrine on the entire country through the US Supreme Court. They are saying that life begins at conception, which is just a religious view, that is all it is, and they’re imposing that on all of us. You can actually see this in the language of both of the legislators who passed these laws and and even in Sam Alito’s majority opinion, he cloaks it and camouflages it by talking about morality, but it doesn’t take much to scratch below the surface and see that he’s really talking about his religious beliefs.

Sam Goldman 25:57

I did want to say that I saw Roe being on the chopping block for a long time. I still didn’t think the Dobbs case was going to be the case that they heard. Once they took it, it was pretty clear that absent a really society-wide intervention and a change in culture that we did not see that created a situation in which they can make a different calculation, they were headed, totally eviscerated. I think that one of the things we saw last term, now with this kind of totally stacked Supreme Court, we saw a lot of this greasing of the path to Christian theocracy. And in particular, drilling is not the right word. Ripping is not the right word either. But there are now gaping holes in the establishment clause, thanks to decisions that were made this past term. Besides Dobbs, are there cases that you think have not gotten as much attention as they should of to this crusade in the Supreme Court?

Andrew Seidel 27:02

Yeah, there are quite a few, including several from this past term. And just so everybody knows, the text of American Crusade was finalized just before the Dobbs opinion to overturning Roe leaked. I convinced my publisher to let me add in a little bit about that, which I was able to do. I also have an update already for the book on my website, which people can go read for free when they get a copy of the book, and it’ll be in future variations. But you know, in an update to a book like this was always going to be necessary, for the reasons you identified, and because this court wants to take these cases and decide them in favor of Christians.

There’s two cases that really jumped to mind. One people probably have heard of, and that’s the case of the football coach that wanted to impose prayer on students at the 50- yard line. There’s a number of really remarkable things about this case, outlandish things, truly, about this case. This case was about a coach who was abusing his power and position to impose Christian prayer on other people’s kids. That’s what this case was about. We know for a fact it is undisputed in the record that students felt pressured to pray. They felt that if they wanted to play on the football team, they had to pray with this coach. This case was brought by a Crusader. It started before Trump was president, before the courts were packed.

The other side brought this case knowing it was going to be a loser, but that they could fundraise off it. So they pitch it as the big bad government oppressing the poor, persecuted Christian who just wants to pray. But the school district, time and time again, tried to work with the coach and say, hey, we’ll let you pray. We want you to be able to do this if it’s important to you, but we don’t want students to feel like they have to join. So we have to figure out a way to do it that doesn’t violate their religious freedom, because you’re acting as a public school official and you’re abusing your power in a way that violates their religious freedom. And time and time again, the coach refused to do that.

Actually, there was this really interesting brief moment before the Crusaders stepped in to take the coach’s case where he agreed to those accommodations, and everything was perfectly fine. And then the Crusader comes in and steps in and says ah-hah, we got a better idea. So they pitch this case as this guy is just having his moment of personal silent prayer. And that’s it, but it’s at the 50 yard line. After games, students feel pressured to join and students are joining in. By the time it comes to a head, you have people rushing the field and knocking over band members. You have state legislators out there praying with this. It is a huge circus and it’s endangering students, not only religious freedom, but their health and safety at this point.

The lower courts uniformly decided in favor of the school district. The school district was right to put the coach on leave. He’s abusing his power. He does not have a religious freedom right to violate other people’s rights. There is nothing about this that is quiet and silent prayer. And the Ninth Circuit judges go so far as to say that the Crusaders are spinning a “deceitful narrative,” and they talk about how nothing that they say reflects the truth. One of the opinions in the Ninth Circuit, even though this breakdown of the actual claims that the Crusader made, and then the facts the reality of the case. Like, we’re so far into the realm of alternative facts, and you have judges warning and chastising this Crusader for adopting a “deceitful narrative.”

Now, Sam, I don’t know, you’re not a lawyer, but if somebody said that about you, especially somebody in authority who you have to practice, if that were me, as a lawyer in front of that court, I would take a sabbatical. I’d question my choices. I’d spend a year examining my morals and principles and see what did I do wrong? No, the Crusader appealed to the Supreme Court, because they knew what the Supreme Court would do. They stuck by their deceitful narrative. They recited and recycled their deceitful narrative before the Supreme Court.

That tells you all you need to know about how they thought the Supreme Court would view this. The Supreme Court adopted it whole hog, just complete alternative facts. They treated that like it was reality. So much so that Justice Sonia Sotomayor, in her dissent in this case, includes photographic evidence debunking this deceitful narrative. I’ve never seen anything like this before. I mean, we’re so far over the line, they’re bending reality to reverse engineer these results. So that case was way worse than people, I think, realize even if they had heard about it.

There was another case that was completely under the radar called Carson v. Macon, out of Maine. This involved a case where parents were challenging a provision under state law, which said that — you know, Maine is a rural state, right — there’s a lot of areas where it’s so sparsely populated, it doesn’t maybe make sense to build a school building. So, to make sure the students got an education, the state arranged to pay for their tuition, or to pay the cost for them to go to another public school, or to a private school if that was easier for the parents, but the private school couldn’t indoctrinate the children into a particular religion, right? It had to give the equivalent of a public education.

The reason for that is that since before the Republic, if we’re talking 1787, 1776 for some state constitutions, we have said that you cannot tax citizens. You can’t take their money and then turn around and give it to a religion, to a church, to a religious school, because to do that violates every taxpayer’s religious freedom. This is a very basic, simple rule. Thomas Jefferson said that it was sinful and tyrannical to tax somebody and then give that money to religion. To have it otherwise is government enforced tithing. Basically, the government is passing the collection plate for the benefit of the church.

So this rule was challenged by the Crusaders twice in the ’90s. They lost both times. They lost their appeals. The Supreme Court refused to hear the case twice in the early 2000s. But at a lower level, they lost their appeal. So, a Supreme Court refused to hear the case. And then again, recently in the case, the Supreme Court decided in their favor, finally, this term. What they said was that these private Christian schools have a right to access those public funds. And these schools, by the way, are like very violently anti-gay. The facts of the case showing their bigotry is really haunting stuff.

Sam Goldman 33:23

The admissions policies that the schools had spoke to gender, spoke to sexual orientation, all the stuff that they have, it’s in their handbooks. People think about “Don’t Say Gay” on steroids.

Andrew Seidel 33:36

Yes, that’s actually a very good way to describe it. It really is haunting stuff. And the schools say that they are ministries and extensions of churches and that their objectives are to make sure that every student accepts Jesus Christ as their personal Savior, and things like this. So now you have Muslim and Jewish and non-religious students supporting financially that mission, and the stuff about the bigotry is just haunting. Like one of the schools said that God recognizes homosexuals and other deviants as perverted. They said that students from homes with serious differences with the schools biblical basis or its doctrine will not be accepted. Being “openly gay” was considered “immoral activity.” Students had to go to counseling, and if they remained “entrenched,” then they would be expelled — really awful, horrible stuff.

Here’s one of the things that’s crazier about the case, is the schools themselves weren’t litigating the case. It was parents who wanted to send their kids to those schools, and the school said, “Hey, we might not take state money.” This was a case, again, that shouldn’t have even been heard by the court. If the situation had been reversed, and it were our side trying to bring an equivalent case like this, the court would have kicked it out for standing, because there’s no guarantee that the school is even going to get that public money. They might refuse it, which means you don’t actually have a case to litigate right now, but again, this court wants to decide the cases.

So now in the name of religious freedom, every main taxpayer, including Muslims and Jews and non-Christians are paying for those lessons. And the opinion is full of gaslighting. They’re claiming that the opinion is centered on equality and nondiscrimination. But it ignores the vile discrimination that the Christian schools engage in. You know, it’s almost as if Christians discriminating is not a kind of discrimination that concerns these conservative justices. And that really is accurate. So this not only overturned a literal founding principle that you can point to in state constitutions as early as 1776, like New Jersey and Virginia, but also really favors conservative Christianity at the expense of everyone else, which is the point of this crusade, the point of trying to weaponize religious freedom.

Sam Goldman 35:50

Very helpful, Andrew, thank you. Looking ahead or not even ahead at this point, what’s going to be heard or has been heard already, in this current term? What should we be paying attention to?

Andrew Seidel 36:05

That’s a really good question. There’s a number of cases that I think are a little bit alarming. So remember, the Supreme Court gets to decide which cases it’s going to take. It rejects, you know, between 97% and 99% of the cases that come this way, depending on the term. Again, this court wants to decide these cases. But there are three cases that I’ve got my eye on. Two of them I’m watching because democracy hangs in the balance.

Moore v. Harper is a case that if/when it is wrongly decided, could allow state legislatures to overturn elections, which, incidentally, was the goal of January 6. This case is basically the January 6 insurrection, dressed up in judicial robes. It ostensibly centers on something called the independent state legislature theory or doctrine, which is neither. It is a nightmare that was born on the fringe of conservative legal thought that will help that fringe seize and retain power. One of the first times that fringe idea was proposed was in Bush v. Gore in 2000 by Chief Justice Rehnquist, Justice Thomas and Justice Scalia. The other justices rejected it, opting to decide the election themselves over a host of other ethical and nepotism concerns. But leave that for now.

Another case is Merrill v. Milligan, which the Court heard arguments on already, and this case could and probably will kill what little is left of the Voting Rights Act. If people remember, the Court gutted Section 5 of the Voting Rights Act back in 2013, in the Shelby County v. Holder decision that ended federal pre-clearance for states that had long histories of voter suppression. Basically, if a state had a long history of voter suppression, if it wanted to make changes in its voting rules, it had to clear those changes through the federal government. The court stopped that in the Shelby case.

The court also rubber-stamped partisan gerrymandering in 2019 in the Rucho v. Common Cause case, and then it weakened Section 2 of the Voting Rights Act just last year, 2021, in the Brnovich v. The DNC case, but the Merrill versus Milligan case could really get that final safeguard against racial gerrymandering, which is Section 2 of the Voting Rights Act. The underlying case is so bad that even two Trump judges on the very conservative 11th circuit agreed that the maps that were presented in this case were challenged and had to be thrown out and redrawn.

The Supreme Court changed course in January so that the racially gerrymandered maps will be used for the 2022 midterms. Kavanaugh basically said, “Hey, it’s a toss up, we’ll go ahead and keep the maps.” Then the final case that I’m really watching relates very much to the crusade, and that’s called 303 Creative versus Elenis. This a redo of the Gay Wedding Cake case, which I have an extensive chapter on in American Crusade. This is one of the things that I think makes American Crusade also different and unique, because the court is using alternative facts in a way that people don’t realize.

A lot of pop law books just go off of what the Court said and assume that they’re balancing things and they’re calling balls and strikes. But that’s not what this Court is doing, especially in these cases. I interviewed the gay couple who were denied service in that wedding cake case, Charlie Craig and Dave Mullins. I interviewed two of the Civil Rights commissioners who the Supreme Court basically called anti-religious bigots in that case. So I dug much deeper to tell the true stories behind each of these cases and show how our law and our reality is being warped. But the 303 Creative case is a redo of that case. It’s brought by the same Crusader, ADF, Alliance Defending Freedom, which is this anti-LGBTQ Christian nationalist legal outfit. They asked the court whether a website design business, which has never been asked to design a website for an LGBTQ couple, nor has it ever had a civil rights enforcement action brought against it. They are asking whether that website design business has a free exercise, as in free speech right, to exempt itself from state civil rights laws.

Now, one important caveat here is the Court only agreed to take the free speech question. I don’t think that necessarily stops the Court from deciding a religious issue here. But really this case ought to terrify us. It really ought to scare every one of us for reasons that I identify an American Crusade. But if there is a constitutional right to discriminate, in spite of what civil rights laws say, you know who are going to be the first victims here. This is not hard. It’s going to be LGBTQ people, quickly followed by religious minorities, the Jewish community, and very soon after, we’re going to see this extended to racial discrimination. That is going to happen. These arguments were tried against the Civil Rights Act the first time by racists to want to continue to discriminate and continue to segregate and I lay out that entire history in American Crusade.

Sam Goldman 40:52

One of the arguments that’s made throughout the book is this mission of the Crusade to codify religious freedom, not as the freedom it was designed to, but the freedom to impose their religion, Christianity, on others, as you said in this interview, as a weapon, as a bludgeon, as an aspect of their form of minority rule. Now they’re in positions that people for way too long thought that they wouldn’t have. Nobody, I mean, I shouldn’t say nobody. There are many scholars like yourself who did, but for a very long time, people didn’t take this movement seriously. People thought that they were loonies and they dismissed them. They did not take them as a serious, organized, dangerous force.

AS: [You’re absolutely right about that.]

Sam Goldman: I think that it was an extreme disservice. There were people, again, like yourself, who were thinking ahead of where this is going, and what they could do and what they were planning to do in sounding the alarm. But I think that it was a danger that more people were in this spirit of dismissing them, likely because of the religious fanaticism. And the notion that, well, in America that wouldn’t happen, there’s no potential of theocracy, we have the rule of law.

Well, here they are making great strides, or as you are pointing out, more not just shredding the rule of law but rewriting it for the race. I think that that is perhaps even more ominous. We’ve talked a lot about — and rightly so — the danger that this crusade poses, the weaponizing of religious freedom. What, if anything, is giving you hope right now? And maybe we’re talking about in the context of the book, what difference would it make if people understood this? Where’s your head at? Things look really scary and dangerous and we don’t need to prettify it. It’s not pretty. But is there something that we can do, we should be doing, or that you see happening that gives you hope?

Andrew Seidel 42:55

First, I do have hope. But I think things are gonna get worse before they get better. And we need to mentally prepare ourselves for that and prepare for a very long fight. This crusade has been going on for decades. It intensified over the last decade. And they really — that’s when they won most of their ground. They’ve been playing the long game for a long time.

The second thing I’ll say is I do have hope. It’s explained why I’ve hoped. I think people have to understand why this crusade is happening, because it’s also where I derive a big chunk of my hope from and why are Christian nationalists seeking this weapon seeking to change religious freedom into a weapon? And the answer is that it is largely a backlash against equality realized. So conservative, white Christian Americans’ status as the dominant group is threatened. It has been for some time, right? They’re losing the culture wars, you know, which is a silly phrase, I think, meant to mask attacks on human rights. They are losing the privilege and deference which they believe they are due.

Go listen to Justice Alito’s gloating speech in Rome from July, you know, after he overturned Roe vs. Wade, if you don’t believe me. When the dominant group or caste in society feels threatened or left behind by circumstances, it reacts or better yet overreacts by seeking a way to retain that status. That’s why we are seeing them turn to Christian nationalism, to violent insurrection, to the so-called strong men like Donald Trump. But that’s also why we are seeing them work to weaponize religious freedom, and studies back this up. There was a 2021 survey, which found that simply mentioning the changing religious demographics in America elicited a threat response and triggered defensive political stances among Christians. Simply acknowledging shifting demographics created a feeling that their religious freedom was threatened, and it actually moved them towards Christian nationalism and Donald Trump. So they conflate demographic laws with a threat to their freedom, which also by the way, suggest that they fundamentally misunderstand religious liberty as privilege, that they believe freedom means enjoying the trappings of their dominant status.

The crusade is a quest to remake that protection into a weapon for maintaining that dominant group’s status. That really is crucial for everybody to understand: conservative white Christian America is dying a slow demographic death and rebelling. They are raging against the dying of their privilege. And so they declared war. That sounds terrible, but the reason that gives me hope is because of their wins in the abortion case, in the coach imposing prayer and other people’s children case, in the case of Maine taxpayers being forced to fund religious indoctrination. In all of the cases I detail in American Crusade, their wins swell our ranks.

So they’re actually creating a feedback loop. Because remember, the whole reason for the Crusade in the first place is demographics. White Christian nationalists are working to privilege the chosen few. So every legislative and legal victory they notch alienates more people, wakes more people up to the danger, and drives more people to defend the wall of separation between church and state, drives more people into the arms of groups like Americans United for Separation of Church and State, and you’ve got to work. So they’re power-hungry aggression is growing our movement and they’re crusading.

In other words, because we are working to meet those unmet promises in the American Declaration of Independence in the US Constitution, the self-evident truth that all are equal, that we are the people means all the people, and previous generations have failed to realize those aspirations. They have left it to their children to contend with human tragedies like slavery and segregation and the subjugation of women and discrimination against LGBTQ people, and now the climate crisis. But as we continue to march toward that progress, Christian nationalists are fighting ever harder against it, and they’re not going to go gently. They’re going to rage against the dying of their privilege.

But I have hope that we will win in the end, because they are fighting only for themselves and where they are selfish, we are selfless — we fight for “we the people.” I work at Americans United and this is what we do every day: we are fighting for everyone. Our work allows Americans to come together as equals to build that stronger democracy. They are fighting against democracy, real democracy and equality and freedom, all dependent on the separation of church and state. And in turn, the separation of church and state enables those values.

That is why these well-funded Crusaders are fighting so hard against you in particular, but that’s also why in the end, we will win. As you know, I have more concrete solutions that I get into in the book. But to reiterate the first point, none of them are quick and easy. They played a long game. The Crusaders played a very long game, and they’ve captured the highest court, and that court is now drunk with power. So we have to really expect a long fight. It’s going to take a long time to heal the damage that they have caused. But I really think that we can do that if we organize and message in ways that build power. And that is what American Crusade aims to do.

Sam Goldman 48:11

Was there anything, Andrew, that I didn’t ask that you wanted to highlight in your book or speak to you?

Andrew Seidel 48:19

One thing I think I had a hard time with writing this book, and I think a lot of Americans have a hard time with — not the younger generation, it seems — is another thing that gives me hope. A lot of us are shackled to the myth of the Supreme Court as the defender of the downtrodden, as this impartial arbiter of truth and justice, and the crusade actually depends upon people believing that myth. But Mitch McConnell and Donald Trump and Leonard Leo, who has a starring role in American Crusade, they cheated and stole and packed the courts to put their collaborators in place, not because those collaborators would administer justice evenhandedly, but because they wouldn’t.

Our Supreme Court is the Supreme Court of Plessy v. Ferguson and “Separate Is Equal,” of Dred Scott and Fugitive Slave laws, of trying to suffocate the New Deal in its cradle, of gutting the power of the 14th Amendment won with the blood of so many Americans during the Civil War, of Japanese internment camps, of Muslim bans, of billionaires and corporations, and political gerrymandering and vote suppression, and of abolishing abortion and reproductive freedom, in the name of their narrow religious doctrine. Historically, our court is not a progressive body that defends human rights. It’s a regressive, deeply conservative body, and we need to wake up to that reality and stop thinking of the Court as something that it is not and start thinking of ways that we can fix it now.

Sam Goldman 49:48

I think that is a perfect place to start. You can find Andrew’s latest book in the show notes. Again, the title is American Crusade: How the Supreme Court Is Weaponized in Religious Freedom, and we’ll also be linking to his previous book, The Founding Myth, Why Christian Nationalism Is an American. We encourage you to check them both out. And Andrew, thank you so much for coming on and sharing your time, expertise, perspective, all that good stuff with us. If folks, we both your bets and want to hear more from you, where should they go?

Andrew Seidel 50:26

First of all, it’s been such a pleasure. Thank you. Your questions were great. So I’m at Andrew L. Seidel. I’m on all the social medias. I’ve got a Patreon if people want to get more in touch and hang out more. I do monthly calls there. And please join Americans United for Separation of Church and State at AU.org. I mean, that’s what I do for my day job. It should be 40 hours a week and ends up being 80 or 100. You know, this is the fight of our lifetime. So many of the issues that we care about are directly related to the through line. Through so many of them is the separation of church and state, and if we have a strong separation, those fights become so much easier. So please join @au.org today.

Sam Goldman 51:07

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