This week, the Senate is holding confirmation hearings for Judge Amy Coney Barrett, President Trump’s nominee for the Supreme Court. After Supreme Court justice Ruth Bader Ginsberg died last month, with less than two months before Election Day, Trump nominated Coney Barrett to replace her on the bench.
The proceedings have been contentious. After Antonin Scalia died in 2015, Republican Senate majority leader Mitch McConnell refused to hold a vote or hold confirmation hearings after President Obama nominated Merrick Garland to the seat more than a year before the election. Their decision to move forward with this nomination has provoked charges of hypocrisy.
In addition, Coney Barrett’s relationship with her Catholic-Charismatic community, People of Praise, has drawn scrutiny as critics have asked what type of authority this group might have over her judicial decisions.
Given Coney Barrett’s rise, this week on Quick to Listen, we wanted to talk about the state of Christian legal world with Kim Colby, who has worked for Christian Legal Society’s Center for Law and Religious Freedom since graduating from Harvard Law School in 1981. Colby has represented religious groups in several appellate cases, including two cases heard by the United States Supreme Court. She has filed numerous amicus briefs in federal and state courts. She was also involved in the congressional passage of the Equal Access Act in 1984.
Colby joined global media manager Morgan Lee and editorial director Ted Olsen to discuss what she makes of Coney Barrett’s participation in her intentional Christian community, what it’s like being a woman in the Christian legal community, and what unites and divides Catholics and Protestants together in this world.
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The transcript is edited by Bunmi Ishola
Highlights from Quick to Listen: Episode #234
Let’s kick off our conversation today by asking, is there a Christian legal community? And if so, who's in it, and who are some of the players and institutions in this space?
Kim Colby: There's definitely a Christian legal community, and it exists in two different ways. I work for the Christian Legal Society (CLS), and we are a nationwide association of Christian lawyers and law students. So there is a community of lawyers who are Christians, who are trying to bring their faith and align it with the legal practice, which is difficult in many ways.
And then I'm also part of the Christian religious freedom legal community, which is a number of organizations that focus on trying to defend religious freedom, not just for Christians but for all faiths.
What is the makeup of Christians in the legal community? Are Christians more drawn to corporate law or religious liberty law? Are they more interested in being lawyers or judges? What kind of information can you give us about Christians in the law world?
Kim Colby: So in many ways, I think the Christian legal community generally is a reflection of the larger legal community. People go into the law for several reasons and they do have a variety of things with their law degree. Some are the people you see on TV and in trials, some are corporate counsel, some are law professors, and some do public policy and never actually practice law in the technical sense. So in some ways, the Christians reflect the larger legal community.
But CLS itself has two focuses that I think are somewhat more predominant for Christian attorneys. And one is the group I work with as part of CLS, which is the Center for Law and Religious Freedom, doing religious freedom work. And so I do think a lot of Christian lawyers are—if not actually doing religious freedom work full-time—trying to do it in their legal practice or they're following it with interest.
And then the other part of CLS is our Christian Legal Aid ministry. And I do think a lot of Christian lawyers are very driven to do pro bono work for the underserved in our communities. And CLS has networks and affiliation with over 40 different Christian legal aid ministries across the country.
Let’s talk about Amy Coney Barrett, especially concerning how she fits into the Christian legal world. When you think of her area of expertise and the institutions that she came up in, to what extent does she reflect what many of the attorneys in the Christian community look like? And to what extent does she deviate or depart from them?
Kim Colby: I don't know her—I should say that from the beginning—and I haven't read a lot of her writings, but I'm about as familiar with her as probably the public is becoming familiar with her.
She seems to be an exemplary person, very self-disciplined. I think all of us are scratching our heads and saying, how does she have a young family, and a large family, and do all the things that she's accomplished? So clearly, she is part of a community—I don't know if it's her family, her friends, or her faith community—that have provided a strong network of support for her.
I think there are a couple of things that I haven't seen elsewhere said that I would just note. And one is that Christian law professors exist and they're very important to the work I do, but they don't exist in the same numbers or at the elite law schools as they should. And I think the fact that we see Amy Coney Barrett teaching at Notre Dame law school—which is a strong and respected law school—but perhaps someone of her caliber, if she weren't as religious as she is, you might expect to see her at one of the Ivy League law schools. I think there definitely is a bias against people of faith in the faculties of some of the elite law schools. And that's unfortunate.
The other thing about her is that she seems to be a very well-rounded person. It's hard sometimes for lawyers to be well-rounded, they tend to become very focused, almost myopically on their work. And it looks like she has kept a network of friends, she has given to her faith community, and she certainly is giving to her family. So that is something where I think we all want to know more about how she's managed that balance.
In the political space, a big deal has been made about the fact that she is a part of People of Praise and lives in this type of intentional community with her family. As a lawyer, what type of reaction do you have about that? Are there any red flags or concerns that make you nervous?
Kim Colby: No, I think we all are aware that there are religious communities that can be too intense, right?
I think so many of us, especially often new Christians, have this strong desire to get back to the Acts church, the one that's described at the beginning of Acts where everything is in common and there's a great deal of community. And I think many of us long for that. We're also aware that oftentimes those types of communities can become too inward-focused and can give rise to abusive situations.
But that does not seem to be what has happened with [the People of Praise] community. And I think one of the clear signs of that is the degree to which Amy Coney Barrett herself is so involved outwardly.
I think always the thing you look for is, is it an inwardly focused group to the exclusion of all else, or is it a group that provides a basis for its members to go out and serve the broader community?
One of the topics that have come up a lot is about originalism and textualism. Can you a quick summary of what each of them is and why they're being discussed right now in relationship to Barrett?
Kim Colby: Originalism and textualism are kind of the same thing, but originalism is talking more about the Constitution and textualism is looking more at statues. But it's the same idea, which is that judges should not be deciding cases based on their preference as to what the policy should be. But that the role of the judge is to respect what the legislatures or the people's representatives have said what the law is. And it's the role of the judge to take what the law says and apply it to a particular situation.
Many people feel that often in the last 30 or 40 years that judges have imposed their view of what the law should be, rather than interpreting the law as to how the people’s representatives intended it to be. And so originalism would say there was a constitutional convention, the States voted for the constitution, so now when we're interpreting the constitution, we need to figure out what was intended by this particular provision of the constitution and apply that.
And of course, that has to be updated somewhat for the current circumstances because there have been technological changes and the 14th amendment was added to the constitution, but it's really trying to be genuine and fair to what was meant when the constitution was agreed upon. Because otherwise, judges are just imposing their views on what the law should be rather than being bound by the constitution, which they take an oath to be.
Textualism is just simply that same idea, but instead of interpreting the Constitution, it's interpreting a federal or state law that's been passed by Congress or the state legislature.
So what's the pushback against that approach? Why isn't everyone an originalist or textualist?
Kim Colby: The best argument is that the constitutional convention was some 200 years ago. Things have changed. Many things have changed for the better because clearly African Americans and women were excluded from much of the constitution, or even their rights were not protected.
And so the pushback is that the constitution has to evolve with the times and if there's a better policy than what was intended 200 years ago, that's what should be implemented.
We talked earlier about how there are Christians in all areas of law and some of them are going to be more involved in discussing these issues than others. Is this also a debate within CLS circles? Or if you’re in CLS you’re most likely to be passionate about originalism?
Kim Colby: So it is a huge area of debate and it has been since the mid-1980s when Attorney General Edwin Meese gave a speech to the ABA (American Bar Association). He's the one who re-introduced the idea of originalism and textualism into the public conversation. So that conversation has been going on for quite a while.
As in any gathering of Christians, CLS included, you'll have a debate of people on both sides. So on one hand, the Christian community is in no way monolithic on this debate. On the other hand, I think that Christians do tend to be more open to originalism and textualism because we take the Bible seriously. We take what words mean seriously.
And for the past 30 to 40 years, there is a very strong dynamic in the law that the words in the law or the constitution are really there for us to pour into it whatever we want. And I think there is a little more resistance to that idea in the Christian community because we take words very seriously, I think in part because of our faith and our trying to live according to what the Bible says.
Generally speaking, Protestants and Catholics read the Bible differently, so do you think that they would also have different feelings about textualism and originalism as a result?
Kim Colby: Well, that is interesting. I haven't thought about that myself or really explored it. My instinct would be no, even though because theologically, that's true. But I have not seen that divide on the legal question on originalism and textualism. But that's very interesting.
There is a divide very recently where a Catholic law professor at Harvard came out and said, when we have the political power to impose what's right as we understand our faith to teach what’s right, then we should do that. And I don't agree with that. I think that's a very dangerous idea. And there was a lot of debate about that for a few weeks this summer.
I do think there might be a strain—and I don’t know if it's unique to Catholicism—of this idea that you impose your religious values in the public square because you know what's right, and the church teaches what's right. Whereas Protestants are more aligned with the idea that we have to have an open public square because otherwise, whenever anyone gets too much power and starts imposing their values, it means that eventually the dissenters from those values are persecuted in one way or another.
Personally, I think that the first amendment reflects the Reformation, which is you get all these ideas out in the public square and you let them fight it out in the marketplace of ideas. And we believe that truth eventually prevails if the marketplace is allowed to really be free. And I think there are a lot of Catholics that would agree with that. And I'm sure that Judge Barrett is of that dynamic, but maybe the debate we were seeing this summer may reflect a little bit of the divide.
Can you talk about the values and priorities of the Christian legal community and how they have changed over time?
Kim Colby: So when I started working back in the ’80s and ’90s, a lot of our focus was on getting an interpretation by the Supreme Court of the establishment clause that did not require discrimination against religious people. Because in the ’70s, that was the strict separationist idea, and separation of church and state is good, but it was being taken to an extreme where religious people were being denied par equal participation in government programs. I started fighting for religious student groups to be on campuses because we were being pushed out of public university campuses. So there was this reading of the establishment clause, that just was way too broad.
That pretty much got solved but then what we didn't see was a broader issue. Once the establishment clause problem got solved in the mid-1990s, where the Supreme Court made clear that letting religious student groups meet on campus to talk about the Bible and pray did not violate the establishment clause, then the issue became “well you choose your leaders based on your religious beliefs and that’s religious discrimination.” And so we started seeing a non-discrimination policy being used to say, “You’re discriminators because you want your leaders to be the same religion that you are.”
So this is kind of emblematic of the larger shift from not being so worried about the establishment clause to being worried about the application of general laws to religious groups to again exclude them from the public square.
On that issue, for a long time, it tended to be the evangelical groups that were the focus of being kicked off-campus. But then it started being the Catholic groups too. And now at the University of Iowa, there's an ongoing lawsuit where it's not just the Catholics and the Protestants, it's the Muslims, the Jewish groups, the Sikhs, it's everybody being kicked off.
I think we've just seen our society becoming less and less understanding of what religion is and why religious groups would insist that their leaders be religious and have the same religious beliefs. And therefore that lack of understanding that was focused on the evangelicals in the ’80s and ’90s has started to apply to everybody.
How has the rise of Christian or religious legal organizations shaped the general advocacy on religious freedom issues?
Kim Colby: The Christian Legal Society has been around the longest of the groups that we're thinking about right now. We’ve been doing this since the late 1970s, and we're also the only organization with Christian in our name. How we do things, and our hallmark, is that we are willing to talk to just about anybody about religious freedom and defending it.
What I've seen with the growth is that each of the groups tends to have the issue that they particularly think needs to be addressed. And that often the groups rise up because of a particular issue, but we tend to work together fairly well.
There's not a coordinated effort, but in some ways, the Christian religious liberty world is fairly small, and so we know each other pretty well and so we do work together quite a bit, but each we have a different focus. There are things that the Christian Legal Society would not necessarily be interested in that other groups are. And that's good. And I think that the diversity of groups is a good thing. I think competition is always good. It makes all of us a little better at what we're doing.
If you're looking at the dynamics over the last few decades, I think one of the big changes is the realization that for religious freedom to be defended in this country, everyone has to understand why it matters. And so for example, the CLS put together what we call The Religious Freedom Toolkit with law review articles people should be familiar with.
Because we've seen this kind of growing attack on religious freedom in this country in the last decade, and if individual Christians don't understand why religious freedom for everyone matters and if we're not able to articulate to our neighbors and our coworkers and our families why it matters, then we're not going to keep religious freedom, no matter how many victories we have in the courts.
Because religious freedom really is something that has to be rooted in our culture for it to last long term.
So very few women have been on the Supreme Court. Is Amy Coney Barrett part of a new generation where there are far more women represented in the legal space or is her being a woman part of what makes her surprising?
Kim Colby: One of the things that she has benefited from is the fact that about 40 years ago, someone like Justice Ginsburg went to law school.
There were, I think, eight women in Justice Ginsburg's class at Harvard and there were so many opportunities not available to her them. Justice Ginsburg was top of her class, if not first in her class, and yet there were so many law firms that would not even give her an interview because she was a woman. And so she ended up going into the academic side of things before she became a judge and did a lot of work with the ACLU.
So I think we are seeing a lot more women who are highly-qualified, who are serving as judges. I don't have the statistics for how many of President Trump's appointments have been women, but a large number have been. And we're seeing it in part because of the pioneers a generation or two ago who didn't have the opportunities, but as a result of their pioneering, the opportunities opened up.
Amy Coney Barrett, she clerked for Justice Scalia and that's the kind of experience that’s a trademark of people who are nominated to the Supreme Court. So you kind of need to check the box of being a Federal Court of Appeals judge, and that wasn't open to women till a little while ago. So I think what we're seeing with her is that women just have more opportunities in the last 10 to 20 years because of the hard work that other women did 30 and 40 years ago.
How would you have described the Christian legal space when you started coming up in it?
Kim Colby: I was on a lot of panels because they wanted a woman to speak, and fortunately sometimes I still get invited to a panel because they want a woman to speak, but they have a lot more choices now.
Women are very well represented in the space I'm in now. They weren't when I started, but the world was small, as far as religious liberty, back then, so that wasn't so unusual. And also, 25% of my class at law school were women around 1980, and I think it's more like 50% now.
What about how racially diverse the space has been? Is this something that you've seen change over time in the same way that you've seen it change with women?
Kim Colby: It's not that there is no racial diversity in my space, but it's not what it should be. And that is a problem. And I'm not quite sure how we resolve that problem.
Going back to your earlier question about the Catholic-Protestant divide, I think one of the things that brought the Catholics and the Protestants together was the abortion decision. And working together on pro-life issues, which often overlap with religious conscience and religious liberty issues, started bringing the Catholics and Protestants together. Other issues did as well.
What I have found recently in our religious freedom area is that we are asking African American pastors and others, “where are you in this religious freedom fight?” And we're finding there's still is a lot of distrust of what religious freedom means and where the evangelical church has been in the past in the civil rights area.
I think the African American church is becoming increasingly concerned about religious freedom issues as they see the government becoming more aggressive toward others in this area, but they also have this latent feeling of, “You're just coming to talk to us now when you need us.” And so there’s still this kind of hesitancy in this space because they fairly don't want their views solicited and their help solicited when we need it, but not when they need help from us as well.
As we wrap, can you share what your predictions are for the future of the Christian legal community?
Kim Colby: I think we have a lot of work ahead of us, and I am deeply concerned about where religious freedom is in our culture right now.
I think too often, people will buy the idea that we're not being persecuted like the church in China and it's good to be persecuted because that's when the church grows. And I actually want to avoid persecution as much as possible. I think the church thrives when there isn't persecution as well. And I think we've become very spoiled in this country. We assume that religious freedom is just part and parcel of our society. And it really is under some very strong attacks in the past 10, 15 years.
So, I think there will continue to be a need for very strong defenders of religious freedom across our faith spectrum, and I think individual Christians really need to understand what religious freedom is, why it's important for everyone, and how to articulate that importance—and especially to come to the defense of religious freedom, even when they may not agree with the underlying controversy.
They need to respect that other people's religious conscience takes them in a different direction, and they need to be willing to defend other people's rights to live according to their religious beliefs so that they can live according to their religious beliefs too.
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