The Heritage Foundation’s Dr. Ryan Anderson joined me today to talk about his new book Truth Overruled: The Future of Marriage and religious Freedom:
HH: Joined now from Central California by Dr. Ryan Anderson, he is the Heritage William E. Simon Fellow. Dr. Anderson is a specialist in all things related to marriages. His new book is called Truth Overruled, comes from Regnery Publishing, and Truth Overruled probably has a “#TruthOverruled” and the lunch rule is. . . Do you know what the lunch rule is, Ryan?
RA: Seven times.
HH: Seven times, so Truth Overruled is four. So you if say Truth Overruled even one more time you would have hit your quota. What is our Truth Overruled about?
RA: Truth Overruled is about the future of marriage and religious freedom which is the subtitle, the Future of Marriage and Religious Freedom. It’s a response to the Supreme Court’s decision this last summer and it charts out a course of what conservatives need to do now to build a bright future for marriage and for religious freedom.
HH: Now I just saw your eyebrows go up when John Thune said, “We’re sticking with 51 for judges.” And I told you that John Cornyn said the same thing. Explain the significance of those two statements. Those are big statements for people like you.
RA: Sure, most of the damage that has been done on social issues, I don’t like the phrase “social issues,” but your listeners know what it means, whether it’s been marriage, whether it’s been life, whether it’s their religious freedom has happened at the hands of judges, so if we can get through judicial nominees to be appointed to the bench so we can people who actually uphold the Constitution, don’t legislate from the bench, we then have a much better fighting chance to promote a culture of life, a culture of marriage, to protect religious freedom. It’s unaccountable judges, whether it was Roe v. Wade, whether it was Obergefell, a series of cases that have imposed radical social agenda on the country that the majority of the country simply doesn’t support.
HH: I’m talking with Dr. Ryan Anderson, author of Truth Overruled out by Regnery and of course at the Heritage Foundation. So Ryan, when we go back to the “51-rule,” people need to understand how big that change that big is, and they have to go back, you probably, I don’t know how old you are, you’re very young, but summer of 2001 through January of 2003, Democrats boycotted Republican judges and then they boycotted them some more and it was very arduous. This would be a radical change if we can elect a Republican president.
RA: Oh, I can remember. I was an undergraduate under that time period, but I remember there were full-paid ads saying, confirm or at least have an up-or-down vote even if you’re ultimately going to vote against them, at least schedule the vote, and I remember it was Harry Reid just wouldn’t bring them up for a vote and they just sat there for years.
HH: Yes, Patrick Leahy was the Chair of Judiciary and from the summer of 2001 to 2003 and then as minority leader Reid blocked them and we took teh senate so it was really remarkable.
HH: It took a deal, so would you agree that if the Supreme Court goes that way we could restore originalists to the bench?
RA: Depending on what happens in this election, they’re going to up to four Supreme Court nominations for the next president. There’s going to be four Supreme Court justices who will be in their 80s during the first term of the next administration. Whoever gets to appoint those justices, whoever votes to confirm or block confirmation, that’s going to be vitally important. The four are Ginsberg, Brier, Kennedy, and Scalia. So it’s two liberals, one conservative, and the swing vote.
HH: It’s a huge change coming in and if the Republicans keep the senate and if they get the presidency conversely with a 51-rule the Constitution a clean slate except for that which, they’ll still take office on January 20th but other than that it will be living Constitution time.
RA: If it goes the wrong way, if this election puts someone who believes in a living Constitution, that person will get to have up to four additional voices, two of whom would be replacing current living constitutionalists but the other two, one’s a conservative and one’s more or less a libertarian. I think at the end of the day is a libertarian justice.
HH: Given the stakes, don’t all the Republicans in the world need to say, “Support the Republican nominee?”
RA: Well, I think all Americans need to say support whoever is going to defend the Constitution.
HH: (Laughs) Yes, but this is specifically — Bob Dole attacked Ted Cruz today, other people have attacked Donald and I sit here — George Will attacked Donald Trump yesterday on this show. Said there should be a third conservative party to save the party, and I’m thinking we do not have the benefit of time. I don’t care who the nominee, they could nominate me, and I would ask for everyone’s support, it does not matter who the nominee is.
RA: The way I approach this is to say, what’s going to be the interest in the long-term for the country and it strikes me that judges are going to be virtually important, whether you believe in the sanctity of life, whether or not you believe in the true definition of marriage, whether or not you believe in religious freedom, whether or not you believe in a strong national defense, whether or not you believe in the kind of private property, the rule of law . . . All those things, and it strikes me that one party is a heck of a lot better than the other in those issues.
HH: Donald Trump has been saying, quoting Nixon, the “Silent Majority,” and now he’s calling the “Not-so-Silent, Loud Majority.” Do you believe that exists still when Nixon referred to it, it most certainly did but do you believe it exists?
RA: It’s hard to know what exactly what Trump means by that, it’s hard to what Nixon meant by that, but on issues that i work on, i can see there are people, all walks of life, who will come up to me and say, “I agree with you, I can’t say it out loud.” This includes graduate students, places where I’ve studied, they can’t say it out loud for fear of not graduating. Untenured faculty members for fear of not getting tenure. Junior lawyers afraid of not making law partner.
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HH: It’s Hugh Hewitt, joined by Dr. Ryan Anderson of the Heritage Foundation, he is a scholar on religious liberty and on marriage. He’s got a brand-new book out, Truth Overruled: Marriage and Religious Freedom published by colleagues at Regnery, you should go immediately to Amazon.com and get Truth Overruled if you are a person of faith, even if you are a secularist, but you understand the contributions that faith makes. Truth Overruled puts forward a proposition, Ryan, you and I have been to many Alliance Defending Freedom conferences together, many other conferences together. We both understand how this gig works, but a lot of other people in America don’t believe it could come to it. How do you come to persuade them of the threat?
RA: Sure, a couple of things, one is what I do in the first half of the book is that I make a secular argument about what marriage is. I just explain based on human nature, why it’s between a man and woman, a husband and a wife, a mother and father. But then for the second, I say here’s what happens when that truth about marriage gets overruled by a court, and so I through stories of bakers and florists and photographers that your listeners would be familiar with.
HH: You’re familiar with, yes.
RA: But then I also say, what’s going to happen to the non-profit tax status of Christian schools? What’s going to happen to the licensed who operate a radio station for Salem Radio Network if you’re propagating these anti-LGBT viewpoints? What’s going to happen to homeless shelters? What’s going to happen to adoption agencies? Because what we’ve seen happening since the Supreme Court ruling itself is that SOGI laws, SOGI an acronym for Sexual Orientation and Gender Identity have been popping up at the state and local levels and the administrative state, the bureaucracies and the Obama administration are just reading these into Title IX and reading them into existing civil rights laws. That’s what took place at the public school district in Illinois that was told that they had to let the boy use the girls’ restroom because he identified as a girl. It’s happening right now with a HUD regulation that’s going to apply to faith-based homeless shelters and it’s happening right now with Obamacare. The Department of Health and Human Services has issued a new HHS mandate. It’s an advanced notice for proposed rule-makings, hasn’t been finalized, but it’s going to say all health insurance plans have to cover sex reassignment surgery and all physicians would have to perform it. IF you’re a surgeon who does surgery in that part of the body, you can’t say that you don’t do that surgery for sex reassignment. If you’re a hormone therapist that does hormone treatments, you cannot do it for the person who wants to transition. No religious liberty protections, no conscious protections, no simply medical best judgment protections, if you don’t it’s a good medicine.
HH: Now what people won’t believe, and we have to walk them through some ancient history here, when I was a young lawyer leaving the DC circuit joining the Department of Justice, there was famous being litigated at the time called the Bob Jones University case and the Smith Department of Justice defended Bob Jones University which at the time in a policy subsequently repudiated by the university prohibited interracial dating and the IRS revoked the university’s tax-exempt status because on the basis of the IRS understanding of the code, you could not have segregationalist-leaning policy in any way, shape or form, and that was repealed by Bob Jones. The Department of Justice defended Bob Jones in the free exercise clause and the Supreme Court said no, they are out of step with I guess, the natural law, if you really take it to an extension. What do you think Bob Jones signals to religious liberty advocates today?
RA: The easiest way of answering this is to say exactly what the Solicitor General said when Justice Alito asked that same question. During oral arguments, Alito said he mentioned Bob Jones, he says, “What about the Christians school that has a campus policy about chastity, says no sex outside of marriage, marriage the way we understand the way the Bible does it, man and woman. Would they lose their non-profit status?” The Solicitor General said, “I don’t deny Justice Alito, that’s going to be an issue, I don’t deny it, it’s going to be an issue. The questions is when will it become an issue? Will it be with remaining year of the Obama administration? Will it be in a future Clinton administration? We don’t know. What we do know is that there are pieces of public policy that could prevent this. Senator Mike Lee has introduced a bill called the “1st Amendment Defense Act” which would prevent the federal government from penalizing anyone because they believe and act on the belief that we’re created male and female and that marriage unites man and woman because what was at stake at the Bob Jones university was that racism is wrong and so we had various government policies that tried to eradicate racism. The Supreme Court has redefined marriage but that doesn’t Orthodox Jews, Roman Catholics, evangelicals, who believe we’re created male and female and that marriage unites male and female are wrong. They’re not wrong, and they shouldn’t be penalized by government.
HH: Judge Sautner of the 6th Circuit spoke to this directly as did of course, Solicitor General at the time of oral argument, but how did Justice Kennedy respond to these issues in his majority opinion?
RA: When Kennedy wrote the majority opinion he said, “Of course, people will still be free to preach,” what was the exact phrase, because Alito in his descent highlighted just narrow it was, but the exact phrase was more or less you can whisper it in the quietness of the four walls of your home and the four walls of your chapel. He didn’t discuss, and the Chief Justice pointed out, the free exercise of religion which is what the actual constitution protects. He said, more or less, you want to freedom to worship inside your church, inside your home, but will you be able to live out your faith commitments at your business, at your school, at your radio station in every walk of life.
HH: And so, the foundations of free exercise would go away, only the tax exempt status, but then there is a level beyond that. First, you’re bankrupted, then you’re prohibited, and I’m not being alarmist here, I’m just saying this is just the way the law marches until it turns the column.
RA: You can see this go through a couple of stages. First, you’ll lose any government funding for education. So if you have federally subsidized student loans, they can take those away. Then you could lose your nonprofit tax status, then you could just simply be regulated out of existence.
HH: And the NCAA will take away your ability to play in a NCAA Division II sports.
RA: Yes, and right now, it’s Hillsdale College and I think three other schools don’t take any government money, but everyone else does because it’s nearly impossible to run a university without science funding or fundamental research funding, but even Hillsdale will be at risk because they need to be a non-profit. They need to have non-profit tax-exempt status, otherwise it would be prohibitively costly to operate that school.
HH: Truth Overruled comes out at a time when many people are weary of this debate on one hand, on the other hand, where many people like me are saying, “Great debate guys, we’ll worry about the Constitution, ISIS is taking over the world and let’s build ships.” ANd how has the response been, we have a minute, we have a short segment after the break, Ryan.
RA: We need to do both. I think we have to able to protect America and American values from enemies abroad while also protecting what it means to be America at home because what good is America if we’re not going stand for our first freedom which is the right for every individual to live their lives in accordance with their beliefs, not just on Sunday morning, but Monday through Friday as well.
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HH: Dr. Ryan Anderson is my guest as we head into the reelection trying to focus on the importance of the judiciary. I begin with Senator Cornyn, Senator Thune this hour, and now Ryan Anderson, the William E. Simon fellow at the Heritage Foundation, the author of the new book, Truth Overruled: The Future of Marriage and Religious Freedom is my guest. Truth Overruled is available on Amazon.com and Truth Overruled is linked over at HughHewitt.com. Ryan, the mood among marriage activists of the traditional sort, what is it?
RA: A lot of people don’t know what to do which is ultimately whiy I wrote this book, I started working on this last spring because most of us knew what Justice Anthony Kennedy was going to do.
HH: Yes, we did.
RA: We thought we knew what he was going to do. And I said is, what did the pro-life movement do after Roe v. Wade that makes it today easy to be pro-life and makes the pro-life movement, and they made real gains, we’re not there yet, but they’ve made real gains. If this blizzard holds off in DC, there’ll be half a million who’ll come to Washington on Friday in [the] March for Life. 43 years later they’re still insisting that they overruled the truth about the dignity of the unborn child in Roe and it’s not the last word. What can we do in the marriage issue? And I would say that a lot of people don’t know how to answer that question and so I wrote this book to give people some practical things to do.
HH: How to tone, to adopt.
RA: Yes, and how to make the argument, and the tone is vitally important, and my kind of background is I went to one of these Quaker prep schools in Baltimore growing up, so K-12 I was at a Friends school in Baltimore and then went to Princeton as an undergrad, so almost all my friends growing up are secular, liberals, they disagree with me about abortion, they disagree with me about marriage. They could understand what I thought about unborn life, why i was pro-life, they couldn’t even understand what I believe about marriage, so I wanted to write something that they could understand. I wanted to write something using philosophical and social science arguments, not theological or biblical arguments, make this accessible to someone who has a totally different worldview than me, but then say even if you disagree with me about marriage, do you have to penalize me? We might disagree about marriage, do you need to fine the baker so many thousands of dollars for not baking a same-sex wedding cake? Do you need to shut down Catholic adoption charity agencies because they kids are for a mom and dad?
HH: And so how is the reception among two groups: conservatives who favor same-sex marriage and leftists who favor same-sex marriage.
RA: The conservatives say, “I just see what the big deal is, but I’m with you on religious liberty.” So the conservatives who are in favor of same-sex marriage, they kind of made up their mind on threat issue, it’s just not that important to them. They think foreign policy, taxes, economy are more important, but they’re totally with me on religious liberty. Liberals are unsure. They know I’m wrong about the marriage question, they don’t yet know where they’re going to come down on their religious liberty question, and what I try to do is say, “We’re either going to be treated like racists or we’re going to be treated like pro-lifers.” Liberal elites disagree with both of them, but by-and-large, they tolerate the pro-lifers, they don’t tolerate the racists.
HH: That’s excellent. That’s beautifully put, that’s why Truth Overruled: The Future of Marriage and Religious Freedom is important for you to get today, America. It’s linked over at HughHewitt.com. Truth Overruled: The Future of Marriage and Religious Freedom. Dr. Ryan Anderson, thank you.
End of Interview