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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. Now, we continue with our election series, 30 Issues in 30 Days. Since last week, we've been focusing on issues other than the coronavirus or racial justice. Tomorrow, we will begin eight in a row on racial justice, followed by eight in a row on the coronavirus. Today, we're up to issue 14, religious liberty versus civil rights. Both constitutionally protected, each a part of the other in very real ways, but often in conflict.

Who has the higher right between a baker whose religion considers gay marriage a sin and the couple who have a constitutional right to equal treatment under the law in a store? Should anyone's religious views on abortion rights dictate access for other people? When is asking Amy Coney Barrett about her relationship with a fringe Catholic group, religious bigotry, and when is it common sense to see if she has a kind of zealotry that believes in imposing her religious beliefs as public policy? With me for this is Emma Green, who covers politics, policy, and religion for The Atlantic. Emma, thanks for coming on. Welcome back to WNYC.

Emma Green: Thanks so much for having me.

Brian: Here's a clip of Vice President Pence from the debate last night, defending the nomination of Amy Coney Barrett so close to the election.

Mike Pence: We particularly hope that we don't see the kind of attacks on her Christian faith that we saw before. The Democrat chairman of the judiciary committee before, when Judge Barrett was being confirmed for the court of appeals, expressed concern that the dogma of her faith lived loudly in her. Dick Durbin of Illinois said that it was a concern. Senator, I know one of our judicial nominees, you actually attacked because they were a member of the Catholic Knights of Columbus just because the Knights of Columbus holds pro-life views.

Brian: Emma, can you start there and fact-check those charges? What was he referring to regarding what he described as past attacks on Barrett's Christian faith or about Harris and someone from the Catholic Knights of Columbus? What was real there and what was not?

Emma: To understand this, we have to go back three years to 2017 when Amy Coney Barrett was being considered for a position on the US Circuit Courts of Appeal. There was a hearing held in the Senate Judiciary Committee where Senator Dianne Feinstein confronted Amy Coney Barrett, who was then a professor at Notre Dame, about her views on abortion and whether or not her faith would prevent her from being a fair jurist and following precedent. That's where that famous quote that Vice President Pence came into being, that Senator Feinstein said, "The dogma lives loudly within you, and it's a concern."

Instantly, this was portrayed on the right as evidence of Senator Feinstein's religious bigotry, never mind the Catholic affiliations of many Democrats. They said that this basically indicated that she was trying to impose a religious test on Barrett to see whether she was fit for office, which is against the Constitution. Now, this has been turned into one of the right's major rallying cries in advance of the Supreme Court confirmation hearings, trying to portray Democrats already before the hearings even start as being religious bigots, and trying to disqualify this line of questioning from entering into the hearings.

Brian: What can you tell us about the group that Amy Connie Barrett is in, and why it draws special scrutiny?

Emma: This is a group called People of Praise that is centered in South Bend, Indiana, where Amy Coney Barrett has been a professor at Notre Dame for many years. They are part of what's called the charismatic movement. It's an ecumenical group of people from all sorts of Christian denominations, Catholic and otherwise, who in the 1970s began gathering as a thick community of people who agreed to a covenant of the way that they were going to behave and worship, agreed to certain types of communal life, giving away money, volunteering for the poor, and also, embracing practices that are common in other charismatic communities.

This can include speaking in tongues, believing that there are messages or modern-day prophecies. This is a charismatic expression of Catholic faith, which is not necessarily typical for most Catholics in the US, but it's also not unheard of and is something that a number of Catholic groups across the country embrace.

Brian: Does that group or does she, as an individual, have a history of trying to impose their private religious views on public policy? That's the central question, right?

Emma: Right. We know that when she was a professor at Notre Dame, Judge Barrett signed on to an editorial in the local paper about the right to life and the evils of abortion. We also know that the views of the group that she's involved in, People of Praise, tend to be very conservative on abortion, tend to hold a pro-life view that opposes abortion rights.

We also know that judge Barrett has said in public appearances, speeches, in her comments before the Senate Judiciary Committee, that she believes that the job of a justice is to uphold precedent and to follow the holdings of the court. We're in a little bit of a bind here because, on the one hand, we have strong indications that her personal views are almost certainly pro-life, that she is a critic of Roe v Wade, but, on the other hand, she has maintained that the job of a judge is to put aside their own personal views and follow the law wherever it takes them.

Brian: Here's another clip from the debate, and this is going to be the longest clip that we use today, this is almost two minutes. It's on a question that really hasn't been discussed that much in the media around this campaign, and maybe because it's such a perennial issue and everybody already knows where they stand on it, maybe, but it's abortion rights. Here's Pence explicitly on the issue of abortion rights, and then, we'll hear Senator Harris' response. This also gets into court-packing and the Amy Coney Barrett nomination. This starts with Mike Pence.

Mike Pence: I couldn't be more proud to serve as vice president to a president who stands without apology for the sanctity of human life. I'm pro-life. I don't apologize for it. This is another one of those cases where there's such a dramatic contrast. Joe Biden and Kamala Harris support taxpayer funding of abortion all the way up to the moment of birth, late-term abortion. They want to increase funding to Planned Parenthood of America. Now, for our part, I would never presume how Judge Amy Coney Barrett would rule on the Supreme Court of the United States, but we'll continue to stand strong for the right to life.

Kamala Harris: First of all, Joe Biden and I are both people of faith, and it's insulting to suggest that we would knock anyone for their faith. In fact, Joe, if elected, will be only the second practicing Catholic as president of the United States. On the issue of this nomination, Joe and I are very clear, as are the majority of the American people. We are 27 days before the decision about who would be the next president of the United States.

Before, when this conversation has come up, it's been about election year or election time. We're literally in an election. Over 4 million people have voted. People are in the process of voting right now. Joe has been very clear, as the American people are, "Let the American people fill that seat in the White House, and then, we'll fill that seat on the United States Supreme Court." To your point, Susan, the issues before us couldn't be more serious. There's the issue of choice, and I will always fight for a woman's right to make a decision about her own body. It should be her decision and not of Donald Trump and the Vice President, Michael Pence.

Brian: Senator Harris, preceded by Vice President Pence. We're talking about religious liberty and civil rights, sometimes in conflict and politics and in the Constitution, as they overlap. Emma Green, politics, policy, and religion reporter for The Atlantic is our guest. Emma, let's break down a few things from that exchange. Pence promised to stand strong for what he calls the right to life but said he would never presume how Amy Coney Barrett would rule on anything on the Supreme Court. Can he have it both ways?

Emma: [laughs] This is the essential mind boggle of the Supreme Court confirmation process and the Conservative Legal Movement. On the one hand, we have conservative legal advocates from Federalist society and the Trump administration, who are adamant that the role of a judge is to call balls and strikes, that the job of a judge is to stick to the original meaning of the Constitution and the text of laws. On the other hand, there is a pretty explicit motivation behind these judicial nominations and appointments, which is to build a federal judiciary, including the Supreme Court, that's going to be more friendly to pro-life points of view, that's generally populated by judges who are critical of Roe v Wade and all of the cases that followed after it.

Amy Coney Barrett, we know is a darling of the pro-life movement. When I talked to these advocates on the pro-life side, they are really happy about her appointment because they believe that she is sympathetic to their views. It's a little bit of having it both ways. It's trying to argue that she will be neutral and follow the law where it takes her, but it's also pretty clear that she's coming from a place of judicial philosophy that's going to be skeptical of Roe and all of its progeny.

Brian: Harris referred to Biden becoming only the second practicing Catholic president if he's elected. Is that right? No one except John F. Kennedy?

Emma: That is right, which is astonishing if you think about it. These days, it's pretty unremarkable for politicians to be Catholic and the kind of anti-Catholic bigotry that JFK faced, now, these days, would be seen as totally out of bounds. Yet, it's taken us long for potentially another Catholic to sit in the White House.

Brian: What was Reagan?

Emma: Reagan was nominally evangelical, part of that general religious right movement, and had a very solid hearing from the Protestant evangelical world.

Brian: What's Pence?

Emma: He is also evangelical. He was raised Catholic and educated as a Catholic, but in his young adult life went through a conversion experience, where he considered himself to be born again and now attends evangelical churches.

Brian: He's accusing the Biden campaign of being anti-Catholic when he left the Catholic Church?

Emma: Yes, I would say that on the right, there is a broad sweeping ecumenism, which is there's a lot of differences, theologically, even politically among Catholics, evangelicals, different denominations, but when it comes to a political take on religious liberty and religious freedom, Catholics, evangelicals, people who have these conservative brands of faith tend to stand shoulder to shoulder trying to defend one another's rights to religious liberty.

Brian: Listeners, how, if at all, should a politic's relationship to their religion be scrutinized when they're running for office or a judge when they're nominated to the bench? 646-435-7280. 646-435-7280. What's the line that you see between constitutional rights to religious liberty and constitutional rights to equal treatment under the law? 646-435-7280. If you're a politically conservative person, who is religious, or a politically progressive person, who is religious, how does religion inform your politics? How should it affect public policy, in your opinion, your own religious beliefs or a politician's or in elected officials? 646-435-7280. 646-435-7280.

Trump, as you know, has literally argued that Biden and Harris are running against God, and Harris defended a woman's right to make her own decisions in the clip we played. "It shouldn't be up to Donald Trump or Mike Pence," she said. Is that a gender issue and a religious liberty issue wrapped into one?

Emma: I think that's so many issues happening at once in terms of the gender politics, the abortion politics, the religious politics. What I would say I take away from that as a religion and politics reporter is that there are a lot of people of faith in the country who care deeply about Christianity, Judaism, whatever it might be, who do support abortion rights. Though the conversation is often framed as this tension between religious and secular anti-abortion and pro-abortion, there's actually a lot of gray space when it comes to how Americans think about abortion and what they want to see from their federal policymakers.

Brian: Pence didn't quite answer the question the moderator, Susan Page, put to him, which is, "What he would want his state of Indiana to do if Roe is overturned and abortion rights become an issue for each of the 50 States? Would he impose a blanket ban on all the abortions if he could get the legislature or a referendum to pass it?" Do we have to look at Pence's record on religious liberty versus equal treatment under the law as governor of Indiana in order to find the answer to that, or does he just come out and say, "If I was governor of Indiana again and I could get the legislature to do it, I would ban 100% of abortions"?

Emma: I think it's pretty clear that Mike Pence is the big pro-life champion of the Trump administration. He tends to be the ambassador to pro-life organizations. He always makes an appearance at the March for Life. This is an issue that he is really vocal and direct on. We do have some evidence from Indiana, at his home state.

There were a couple of laws that were passed a few years ago that actually attempted to restrict abortion through the language of human rights and civil rights saying that it would be illegal for women to discriminate against unborn children on the basis of race, nationality, ethnicity, et cetera. We can already see that Indiana is one of these red states where state legislators have had these pushes to restrict abortion, and Mike Pence is very, very secure and comfortable being put and fit within that part of the movement, within that pro-life movement

Brian: Velma in the Bronx, you're on WNYC. Hi, Velma.

Velma: Hey. Could your guest speak to the fact that, at this debate, Pence said that the president and himself would not ever dare to tell anybody what health choices to make regarding coronavirus, and Judge Barrett, at this party in the White House, inside, she's been diagnosed with coronavirus and so is her husband? I guess they're well now, and that's all well and good, but as a judge, how could she then turn around and say, "I'm not going to tell anybody to do anything with their health regarding the coronavirus, that's their decision," but then, turn around and say, "But we will go and tell somebody what to do with their body regarding abortion"?

Brian: Yes, another contradiction there that I've heard people bring up is if she considers herself pro-life, why did she allow herself to be introduced at an event that didn't protect life by not having social distancing or a mask-wearing? Emma, to the caller's question.

Emma: There are a lot of tensions here between the right-wing anti-masking attitudes or this idea that individual liberty should determine whether or not you wear a mask, and for what it's worth, I think there is disagreement among people who describe themselves as pro-life about how to think about the masks and social distancing, whether it really is the responsibility of people who consider themselves to be pro-life to take that extra step and do what they can to protect other people.

As we've seen, there are a lot of people in the Republican Party and the conservative movement who don't agree with that and who aren't taking those steps. There's a tension there. I also think that the language is a big problem here. Someone like Amy Coney Barrett, presumably, certainly someone like President Mike Pence, wouldn't see the issue of abortion as a matter of healthcare or as a matter of medical decision. They see it as a matter of ending a life. They put it into a separate moral category from how they would think about coronavirus.

Brian: Let's take another call. Camille in Roslyn, you're on WNYC with Emma Green from The Atlantic. Hi, Camille.

Camille: Hi. Two points. Unless I missed it, I did not hear your guest mention that in People of Praise that they use the term handmaiden. They have since gone away from that, but the husband seems to be still the head, the spiritual head of the household. Another thing is that Amy Coney Barrett wrote her first law review article, Catholic Judges in Capital Cases, with one of her professors from Notre Dame. This goes back to 1998, I guess, and William Brennan was asked about potential conflict between his Catholic faith and his duties as a judge, and of course, he said his primary duty was to uphold the Constitution and the law.

Amy Coney Barrett said, and her professor, that they did not defend the position as the proper response for a Catholic judge to take with respect to abortion and the death penalty. I don't know how someone like this can be impartial as a Supreme Court judge. My third point and last point is that she's only been a judge, for what, three years? To me, she has no business being anywhere near the Supreme Court. Thank you.

Brian: Thank you. We're going to leave-- Unless you want to say something about those comments, we'll leave them as comments and go on to another caller.

Emma: Sure.

Brian: Asher in Croton-on-Hudson, New York, where else, you're on WNYC. Hey, Asher.

Asher: Hi. Well, I think that one of the goals of the hearings would be to expose how extreme Justice Barrett's positions are. They might explore actual decisions and I'm thinking of the Masterpiece Cake decision, that basically how- that a baker could not be forced to use his creative skills to create a custom cake based on his, sincerely, held religious beliefs. He said in the record that if a gay couple came into his store and bought a cake off-the-shelf, he'd have no problem selling. I think she could be asked, what do you think a merchant, due to his sincerely held religious beliefs, can bar a gay couple from buying anything in a store?

Brian: Asher, I'm going to leave it there and get a thought. Emma, this is exactly where religious liberties protection in the Constitution and the Constitution's to guarantee of equal protection under the law clash, right? Oops, did we lose Emma Green? Did Emma Green turn into a series of beeps?

Emma: Hi, I'm here. Can you hear me?

Brian: Yes, we are back.

Emma: Can you hear me?

Brian: Yes.

Emma: [laughs] Did you ask for a thought on that hypothetical?

Brian: I did.

Emma: Yes. This question of whether or not the Constitution protects LGBT people when they walk into a store and ask to make a purchase was actually something that the Supreme Court addressed this summer in a series of cases about Title VII, which is about employment rights, and whether or not the Civil Rights Statutes of 1964 actually protect gay people as well. What was surprising about that decision is that Justice Gorsuch, who was a Trump appointee, led the way saying that the Constitution and the Civil Rights Acts actually do protect LGBT people. He was joined by Chief Justice Roberts.

We have some tension here around this issue. I think that there is something really true about what the listener has pointed out, though, which is, there's a lot of focus on Judge Barrett's personal beliefs and how that will affect her decisions as a jurist. Actually, the way to think about her record to question her is based on her body of work, her legal writings, her decisions, and certainly based on the judicial philosophies that she has said she subscribes to. She's a protégé of Antonin Scalia's, and I think questioning her along those lines is certainly something that Democrats will take up in the confirmation hearings next week.

Brian: Last thing before you go, you tweeted out, I think it was a New York Times article this week, about how Mormon women in Arizona might wind up being a decisive voting bloc against Donald Trump. Why is that?

Emma: We saw in the 2016 election, the reliably red state of Utah was actually pretty skeptical of Donald Trump, and there's a reason for this. The large Mormon voting population in Utah was full of people who were turned off by Donald Trump's character, his lack of civic virtue as they might perceive it. In the West, there are a number of states surrounding Utah that have large Mormon populations. Arizona is one of them.

In a state like that, where there's a senate seat up for grabs, and the presidential race is in a toss-up, every single voting bloc really matters, and that's why I thought it was interesting to zoom in on this group of women who, because of their conservative religious commitments and sensibilities, actually find themselves unable to vote for Donald Trump. It could make a difference in November.

Brian: I guess, to wrap up the whole conversation, one of the biggest contradictions that I see out there these days is that some of the politically religious Christian politicians argue we should be afraid of Muslims in government imposing their religion on public policy, "Sharia law", but that's just what the religious right tries to do with theirs. Is that a fair judgment?

Emma: Well, I think it would take a PhD dissertation to fully unpack the campaign against Sharia law and whether or not there's something similar on the religious right, but I guess what I see as the big conflict of our public life right now is the degree to which we are willing as a country to sit side by side with people who have radically different views, and that includes people on the religious right being willing to accept, for example, the Obergefell decision that legalized the same-sex marriage to accept rising public support for same-sex marriage, as one example.

On the other side, to take secular organizations, like the ACLU, for example, and see whether they're willing to allow Catholic hospitals to pursue policies that are in adherence with their views on birth control, abortion, et cetera. I think those conflicts, those spaces where different parties really feel like these fundamental questions about who we are as a country are at stake. That's where all of these fireworks are. I don't think anything that happens in November is going to ramp that down. I think we're only in for more escalation.

Brian: Emma Green, politics, policy, and religion staff writer for The Atlantic. Thank you so much.

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