David Cortman on Religious Liberty Updates
Date: October 20th, 2013

Can a public high school choir group choose to sing Christmas songs at a concert?  Is it legal to pray to Jesus before a city council meeting?  And does the federal government have the ability to mandate certain actions from businesses that might go against the owner’s rights of conscience?  We explore these, and a few other, cases with David Cortman, senior counsel and vice president of litigation with the Alliance Defending Freedom (ADF).

Our discussion begins with an examination of a recent controversy over the choice of songs by an elite choir group in Wisconsin.  Upon finding out that the students were going to sing music with religious content, the local school board stepped in to stop this.  However, Mr. Cortman explains how a simple letter from the ADF helped to clarify the legalities of the issue and reverse the school board decision.  He further details how there is a great deal of misunderstanding about the legal status of many of these “school songs” cases, but they nonetheless keep cropping up year after year.

The next issue we take up is one that is currently being debated in court — the issue of whether or not prayers can be allowed before a city council meeting.  Tony challenges David on this case, noting how a prayer with specific denominational content could alienate a constituency in the community, thereby inhibitting their equal access to the wheels of policy.  Mr. Cortman explains the legal issues surrounding this case and some of the previous court decisions that support his position.  We learn a number of interesting legal terms that are coming into common use nowadays, including “offended observer” and “eggshell plaintiff.”

Our coversation then takes us to the issue of the recent Health & Human Services mandates surrounding the Patient Protection and Affordable Care Act (a.k.a. Obamacare).  While the lawsuit by Hobby Lobby has been well-publicized in the media, there are a number of other similar court cases swirling about the legal system, including one involving the Conestoga Wood Specialties company, which employs about 900 workers in Pennsylvania.  Finding the requirement to provide insurance that covers abortifacient drugs to be a violation of their religious principles, the owners of this privately-held company are seeking redress in the US legal system.  In addition to viewing this as a matter of religious liberty, we also examine its broader implications for governance, including the limits (or lack thereof) for unelected bureaucracies to create regulations that circumvent the normal legislative process of making laws.

We finish our interview with a brief look at other matters that are seen as threats to religious freedom, including the use of zoning laws to restrict church growth and property usage, as well as potential changes to tax-exempt status for religious groups and other such organizations.  Mr. Cortman explains why smaller organizations are often unaware of these changes and what they can do to become more knowledgeable about the policy environment that has direct impact on them.  Recorded: October 18, 2013.

NOTE: The views expressed in this and all of our podcasts, reflect only the host and individuals interviewed.  The opinions expressed do not necessarily reflect the views of Baylor or any other institution affiliated with this program.


David Cortman’s bio at the Alliance Defending Freedom.

Arizona Christian School Tuition Organization v. Winn (as mentioned in the podcast).

Marsh v Chambers (as mentioned in the podcast).


Erik Stanley on Clergy and Free Speech.

Philip Muñoz on Catholic Bishops, Religious Liberty, and Health Care Mandates.

Matthew Franck on Hosana-Tabor and Ministerial Exemptions.

David Wills on Religious Charity and Taxes.

Jeremy Lott on Episcopalians, Ex-Atheists, Health Care, and German Circumcision.

One Response to “David Cortman on Religious Liberty Updates”

  1. FAMiniter says:

    James Madison, one of the prime authors of the Constitution, thought that religious institutions should be taxed. He even proposed that to the Virginia legislature. One does have to ask whether, to the extent at least that churches do not restrict themselves to strictly eleemosynary activities, they should not in fact be subject to taxation. If a church run hospital charges for services rendered, how does it differ from any other hospital, for profit or charitable? Why should it have special rules?

    And public school choirs singing Christian songs? But not, of course, Jewish hymns, or heaven forbid, a Hindu chant or Islamic or Buddhist music. In July of this year, a session of Congress opened with a prayer from a Muslim Imam. Immediately, the right wing of America was aflame with hatred and bigotry, their internet mouthpieces claiming that “Obama’s Congress opens with Muslim Imam’s prayer.”

    And as for the ADF, a few years ago they convinced the Town of Enfield, Connecticut, to hold its public high school graduation in a Baptist Cathedral. They told the school board that the choice would stand up to any constitutional challenge. It did not, and their position was ridiculous in the first place.

    Naive or malicious, the heightened attempt of American religion in recent times to impose itself on the political sphere is alarming. I suggest that in time it will encounter undesirable pushback.

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