In This Episode
This week, Phill takes a deep dive into what’s been on all of our minds: Is Donald Trump finally experiencing the karmic retribution he deserves? Former Buddhist monk, author, and meditation teacher Jason Siff explains a little bit about the philosophy of Karma—and what we in the West tend to get wrong about it. Then, the ACLU’s Chase Strangio joins Phill for a follow-up discussion about the Supreme Court, and how “religious freedom” disputes could potentially push the justices to overturn marriage equality in the future.
Phillip Picardi: From Crooked Media, this is Unholier Than Thou. I’m your host, Phillip Picardi. We’ve got a lot of ground to cover today thanks to our living in a general hell-scape. And a little bit later on, we’ll be talking to the ACLU’s Chase Strangio about a renewed threat to gay marriage under so-called religious freedom laws heading to the Supreme Court. But first, a slightly more pressing matter. Last week, we asked a timely—in fact, maybe to timely question—is it a sin to hate Donald Trump? And then the very evening before our episode aired, the news broke: Donald Trump tested positive for COVID-19.
[news clip] It’s stunning news. The President of the United States now confirming to the world that he and the First Lady of the United States have both tested positive for the coronavirus and they will quarantine. The President tweeting out just moments ago here in the United States.
Phillip Picardi: Immediately that discourse abounded from liberals and conservatives alike, many of whom urged prayer for the president and his family. Others? Well, let’s just say they urged the opposite. The president’s diagnosis and subsequent plummeting in the polls has prompted all sorts of spiritual questions. But the one I’m most interested in has to do with a little something called karma.
[voice clip] And then applaud again at the very end of the debate. But if you could, if you could keep uh, restrain your enthusiasm between those two times, I’d appreciate it. And if you could send me a little good karma, that would also be appreciated. But quietly.
Phillip Picardi: Most of us know about karma from the age old phrase: what goes around comes around. But is it really that simple? And is karma what’s happening to Donald Trump right now? To learn more about karma, I called up Jason Siff, a practicing Buddhist who’s been teaching meditation since 1990. He’s the founding teacher of the Skillfull Meditation Project in Los Angeles.
Phillip Picardi: Jason, thanks for joining me.
Jason Siff: You’re welcome.
Phillip Picardi: Let’s say that recent news has made many people start talking about karma. And I’m wondering if we can start by having you explain what you’ve learned about karma through your own Buddhist practice.
Jason Siff: Well, karma is a huge topic. And the question for me around karma in talking about it to groups is that most people look at karma in terms of what’s called karmic fruit, the fruit of actions that occur in the future, that something will happen to them because of something they’ve done in the past. But to really look at karma, you have to look at what you’ve done, and to get a sense that karma relates to action that you’ve done with an intention. So it’s not just something that you’ve done accidentally, it’s something that you’ve actually decided to do, and it’s something that you’ve either done physically or verbally or an intentional kind of thinking. And so the basic teaching, early Buddhist teaching on this, is that intention to do something is going to produce some kind of fruit in your life, and the action that you’ve committed because of that intention is, of course, also going to affect you. Even in the present moment, it’s going to have some effect. I think just one basic thing around karma, if I could just be a bit academic.
Phillip Picardi: Sure.
Jason Siff: It might help people understand something about the history of Hinduism and Buddhism and things like that—that the Buddhist idea of karma is that you actually have to have an intention. If it’s going to be karma, it can’t be an accidental remark or an accidental action. So the Buddhists, you know, stepping on an insect accidentally is not, is not killing the insect. If you do it intentionally, it is. It’s the same thing, you know, like why Buddhists will eat meat and why Hindus might be vegetarian in this respect is that there’s a belief that the Buddhist belief of it being intentional is not necessarily believed by all people, that some people believe that anything you do can result in karma. And so if you want to really think about this and think, look at your actions and look at things, you know, maybe take a look at really what it is you’re doing intentionally and focus on that, because we can change our intentions. We can do something different. We have other choices. And to really consider that if you want to change your future karma, that’s the best place to start is now.
Phillip Picardi: So in Western culture, we may hear catchphrases or adages, right, like karma means what goes around comes around, or karma is: reap what you sow. So in other words, it’s bad things happen to you if you do bad in the world, and alternatively good things happen to you if you do good in the world. So like when we boil this philosophy down, is it really that simple?
Jason Siff: No, not at all. In fact, it really, really isn’t just the kind of system of, say, retribution of, you know, getting what you deserve from what you’ve done in the past, or something happening to you out of the blue that supposedly you might have done in the past lifetime. Although, you know, Asian teachings will go in that direction. But let’s kind of, you know, look at it as ways in which we are habitually doing things, the way we continually act in situations, and that that will produce similar responses, similar situations. And you really can’t tell when something’s going to come back to you. That’s one of the Buddha’s actual statements around karma, that it’s something that you don’t know when it’s going to ripen, when it’s going to hit you. But you can work on what it is that you’re doing. And that’s really the central thing, it’s the seeds that you’re planting, not just looking at the fruits that are falling.
Phillip Picardi: OK, that makes sense. So in other words, karma is not always swift. Karma is not always directly correlated to something that you’ve recently done. Karma can be attached to a past lifetime. It could be attached to something that happened decades ago. It’s really not as straightforward as maybe people who are not practitioners of Buddhism may think it is. Is that right?
Jason Siff: Exactly right. Yeah. The karma is not quick acting. You know, that’s not the the basic idea. It’s, kind of, it sits and cooks.
Phillip Picardi: Now, a more cynical part of me is wondering if we as Western folks are interpreting karma through kind of this Christian lens, right? That we’re familiar with the concept of sinning and that there’s punishment for sinners and so maybe we’re projecting that onto this concept of karma. Do you feel like that maybe what’s happening here, that there’s this kind of misinterpretation or oversimplification of the philosophy?
Jason Siff: Yeah, well, that has gone through and the introduction of Buddhism, Hinduism in the West, it’s largely been interpreted through a Christian lens and that the early translators of the Sanskrit and Pali were, you know, versed in Christianity and they were translating it using those words. So, yes, that is what’s happening. And so karma becomes a replacement for something like sin or fate or destiny or any of those kinds of systems which are saying that something outside is happening to you because of something that you might have done.
Phillip Picardi: Right. Well, alternatively, is there a comparable philosophy to karma in any other religion or faith that you know of? Or is karma kind of unique in this sense in the Buddhist or Hinduist teaching?
Jason Siff: I would say it’s unique because first of all, it’s heavily rooted in a belief in rebirth. So it’s not necessarily something that people from a monotheistic religion would immediately understand. It’s something that goes on from life to life and it involves, you know, even such statements that the karma you create in this life will lead to a pleasant or unpleasant rebirth in the next or future lives.
Phillip Picardi: So it’s not necessarily a guarantee in that way.
Jason Siff: Oh, it’s just opposite.
Phillip Picardi: [laughs] OK, so, not to be too meta about this, but so I’ve been watching, as you know, there’s been a news event and I won’t be too specific because I don’t want to entangle you in American politics.
Jason Siff: Thank you for that, I appreciate it.
Phillip Picardi: Of course. So let’s just you know, following the popular logic of karma, a lot of folks have been watching something bad happen to a person who does a lot of bad things in this world and a bunch of people have been pointing at this person and saying, that’s your karma, that’s what you get. Let’s first ask you this question: is this that person’s karma? So in other words, are we able to adequately deduce that if a bad thing happens to a bad person, this is karma in action? That’s my first question.
Jason Siff: OK, yes but even bad things happening to a good person or good things happening to a bad person, or good things happening to a good person?
Phillip Picardi: OK, so it’s OK or fair for other people to assume that karma is at work in the world. This is fair game?
Jason Siff: It’s fair, except the problem is where I started off with is that you can’t trace back to the root of it. You can’t make a statement like because this person did this particular action, this is their karma. It’s the straight line causality, you know, this caused that that’s the problem here.
Phillip Picardi: In other words, if a bad thing happens to a bad person, it could have just been from a deed they did years ago or in a past life, it doesn’t necessarily mean it’s because maybe they’re a bad arbiter of the law, for example.
Jason Siff: Yeah, according to the law of karma, that would be, you know, in a sense, we say, when the fruit falls, you know? Like they’ve done some action that in the past, it’s in a sense has been sitting there and it comes about in their life. It comes back at them. But it’s hard to make the correlations. And I think that’s the problem people have. In one respect, it’s useful to make a correlation between action and result, because then it helps us, in a sense, question our actions and hopefully change and become better people. But to be able to say that a particular action happens to somebody because of something they did in this life, or that you can you can pinpoint exactly—I think that’s misusing the idea. I think that’s trying to, in a sense, ascribe a particular punishment for a particular action.
Phillip Picardi: And there’s that Christian lens again. Because this is my next question is that, is it possible that you can get yourself that karma by basically declaring that someone else is experiencing bad karma? Because isn’t that in a way a form of judgment by saying, like, this is your bad karma because you did something bad? Isn’t that also bad?
Jason Siff: Yeah, I don’t know why you’d want to go there, though.
Phillip Picardi: Tell me more. What are you thinking?
Jason Siff: I mean, I mean, why—the whole idea of karma is to arrive at compassion.
Phillip Picardi: OK, ok.
Jason Siff: Not blame. Not you know, to attribute things to people but to understand kind of what’s really going on inside of them, what’s working against them and to have compassion for them in the end.
Phillip Picardi: So the ultimate goal of karma is to understand the quote unquote bad person. It’s to find a way to relate to this person.
Jason Siff: Yeah, bad, good. We’re all good and bad, you know? To relate to to those sides of one’s psyche and one’s behaviors which are good and bad, or which are neutral, to understand there’s much more to a human being than just as you say, just say, just to label to them.
Phillip Picardi: And what happens if you can’t find compassion?
Jason Siff: Well, it’s, compassion is difficult. So you might find you have some moments of just not hating.
Phillip Picardi: Can you be more specific? That doesn’t sound like a concept I’m familiar with in 2020.
Jason Siff: Right. [laughs] This might be a novel concept, you know? It’s what the Buddhists often talk about as loving kindness, you know? That essentially you’re starting to find in a place where the hatred or anger you might feel to somebody is not so strong anymore. You can have maybe in Christian terms, something closer to an unconditional type of love or friendliness or kindness.
Phillip Picardi: But at what point does that become you being a fool to exhibit kindness when someone—
Jason Siff: No, no, but that’s a point. I mean, it could really be foolish, you know, compassion, foolish kindness, I would say in most of this is you really need to understand the nature of people’s actions. So say if somebody’s actions are reprehensible and you don’t hate them for it, but you start to understand you have kindness for them, then maybe, you know, your—how do you say—able to take away some of the overlays, some of the biases, some of the ideas you have about that kind of action and you’re able to reexamine it, you’re able to look at something. I don’t really believe that people should be, you know, like in many cases, like it is a Christian idea that you should forgive somebody immediately when they’ve done something or you should really race towards forgiveness in various conflicts and problems. I actually believe that the Buddhist idea was investigate and understand, become aware, become wiser in these situations, and that will help you understand various conditions around it. And that is going to be the basis for more kindness and compassion.
Phillip Picardi: And also, it sounds like if you understand the situation and you educate yourself more about it, you know how to identify it better maybe the next time it might come around, right?
Jason Siff: Exactly. That’s the idea.
Phillip Picardi: Yeah, because it’s not like we’re witnessing a once in a lifetime situation here with our current political climate, right? As much as it feels extraordinary and unprecedented, a lot of people would say it’s not all that unprecedented, right?
Jason Siff: If they take a larger perspective, they gain perspective on it, they’d say, no, it’s not all that unprecedented. It’s maybe unique to this country, but they travel to other countries or lived in other countries in the world, they might not find it all that unusual. I’m not saying that that’s an excuse for it, but I’m saying it is, it’s out there in the way countries are ruled and the way people respond to their leaders.
Phillip Picardi: No, of course. So do you ever feel like you trust that karma will do its thing if you don’t feel like justice is being served in this current moment, is that ever a part of your human thought process?
Jason Siff: Well, part of my process is, is that I don’t, I don’t believe as a human being, I’m supposed to be an agent of justice.
Phillip Picardi: What do you mean by that?
Jason Siff: I mean that I don’t think it’s my role in situations to be an arbitrator, to judge somebody and to condemn them and say what they, what they deserve, what their punishment should be or anything like that. I don’t see that as my role. I see my role in trying to understand their actions, what brought them there, and how to relate to them.
Phillip Picardi: OK, but surely as a human reading headlines, watching the news, you must be incredibly frustrated or moved towards empathy for people who are being harmed in this moment.
Jason Siff: Of course, I’m not an advocate of ignorance.
Phillip Picardi: No, of course not. I’m not implying that. I’m just trying to say what is your, you know, is there ever that human moment that you feel where you’re like, well, you know, the universe will work itself out eventually, like or, they’re going to get what’s coming to them? That never happens? That’s never part of your process?
Jason Siff: Well, you’re talking about a political situation. I’m thinking about, you know, that the person is going to keep stepping into one thing after another that’s going to bring up their actions, their behavior, their conduct, you know, who they really are. You know, they can’t avoid it. It’s, so I don’t have to get involved in, I don’t have to be a participant in that person. That person, you know, is most likely going to repeat various mistakes. And that’s part of karma. They get locked into habit patterns that they can’t get out of.
Phillip Picardi: Wait a minute. That’s part of karma.
Jason Siff: Yeah, it actually is.
Phillip Picardi: How.
Jason Siff: Basically the Buddhist sense of it is is that the way we habitually act and behave is going to, in a sense, be something that we keep pulling back into. Our conditioning, in a sense, rules us, and that’s going to have certain results. It’s going to make certain parts of our lives really unpleasant and it may add to certain other parts pleasant. So like in somebody’s case, like in this case I think you’re talking about, their habitual actions are going to keep producing misery for them and for others until they start to wake up to it.
Phillip Picardi: Now, one of the things that you said earlier that I kind of want to revisit was this idea of practicing kindness and compassion, of course, is another word. And I struggle with this a lot, I struggle with finding kindness and compassion in this moment. And what I kind of like about the way that you framed how you view yourself in the world, not as an arbiter of justice, not as the decider, but of still finding your own way to choose or practice kindness. Is it possible in these situations that if we can’t find the kindness for a specific being or a specific person with whom we are frustrated or with whom we are angry, is it possible to just not choose anger and to instead choose kindness towards others who need our compassion and who need our emotional attention?
Jason Siff: I think that’s a wise choice. You know, choose your kindness. You know, you can you can choose the people you know you really want to give your attention to and you want to help. And why should you struggle, you know, with somebody who you know, you just you can’t get there. And I think that’s understandable. I don’t, I’m not one of the Buddhists who believe you can start from kindness. To me, that’s more of a place where you get to periodically in your practice and your understanding of yourself in your own, your own meditation, your own self-reflection, your own looking at your emotions and whatever’s going on in your life that you go through, you know, maybe being hurt and wounded and angry. And you may find just a small period where you are not so caught up in that and you find a bit more kindness coming in. But that that’s how I see it. It’s something that comes up from real life experience, not something that’s artificial that you’re just trying to become.
Phillip Picardi: I was wondering if you ever fear your own karma. Like, is it something that you’re scared of or is it something you have to find peace with?
Jason Siff: Well, yes, I realize it’s something that is possibly there in the future and will come back, that certain things will come back. But my sense of it from having gone through a lot of different things in my life, I was, I’m not so much scared of it. I’m kind of, you know, sideswiped by it. Surprises me. It throws things up, it changes my life and then I have to readjust. And there’s tremendous learning and benefit in that happening. And so I respect it.
Phillip Picardi: So you were a Buddhist monk in the 1980s, I understand, in Sri Lanka, is that correct?
Jason Siff: Yes. Mm hmm.
Phillip Picardi: And now you have written books about meditation and you also teach meditation. Is that also is that right?
Jason Siff: Yes, I’ve been doing it for over 30 years, yes.
Phillip Picardi: I’m sure that in your teachings, you’ve come across many people, maybe particularly lately, who are trying to figure out how to find, or how to connect to themselves in this moment when it feels like so much tragedy is being thrown at us from all over. So I guess in closing, I’m wondering if you wouldn’t mind sharing any advice or any intentions or strategies that you have for your own meditation or for your students?
Jason Siff: Well, start off by being kind to yourself when you meditate. And I would say, you know, allow your thoughts and feelings into your sittings. Don’t necessarily expect your meditation to produce something or to get somewhere. Let your mind leave. Let the experience unfold. Let yourself just go into it. And I think you’ll find that meditation is, you know, it will work for you. It will be your own practice, your own way of doing it.
Phillip Picardi: Wonderful. Jason, thank you so much for taking the time to chat with me today. I really appreciate it.
Jason Siff: Oh, you’re welcome, Phillip. Thank you for having me.
Phillip Picardi: Well, so long as we’re on the topic of bad people and bad things, it feels like an appropriate time to revisit the confirmation of Judge Amy Coney Barrett to the Supreme Court. There was news this week from the court that prompted LGBTQ lawyers and advocates, and me, to panic. News that would only get worse if Barrett’s confirmation goes through. To help explain what’s happening right now, we have ACLU lawyer, TIME 100 honoree, and all around badass, Chase Strangio, with us today.
Phillip Picardi: Chase, thanks for joining me.
Chase Strangio: Thank you. I’m so happy to be here.
Phillip Picardi: Well, yeah, I would normally be happy for you to be here, too, but obviously not the most ideal of circumstances for us to be having a conversation together, right?
Chase Strangio: Yeah, no, that is true. I think when I said I’m so happy, I may have overstated the mood slightly.
Phillip Picardi: Totally.
Chase Strangio: Because things are rather bleak.
Phillip Picardi: They are rather bleak. In fact, just earlier this week, you gave me a minor homosexual panic attack. Can you explain to our listeners what you did and said that made me have a panic attack?
Chase Strangio: Well, I feel like, unfortunately, there’s so many moments for homosexual panic attacks at this time, so I have to make sure I’m talking about the right one. So I think yeah, so one of the very alarming things that happened this week was this is the first week of the Supreme Court term. So we are back in SCOTUS mode and the court in their first set of orders coming out of their long conference, which is when they consider a bunch of petitions that have come up over the summer to decide whether or not to hear certain cases, on Monday, we got this denial of review in a case involving Kim Davis. And Kim Davis, for those who are not closely tracking the ridiculous saga of county clerks who refuse to marriage same-sex couples, Kim Davis was the clerk in Kentucky who, after the Obergefell decision, decided that she would not issue marriage licenses to same-sex couples. She is not even a county clerk anymore, but there was a case involving litigation over her decision to not issue those marriage licenses that was up before the Supreme Court. The court decides not to take the case, which is great. However, in an incredibly unusual move, we had Justice Thomas joined by Justice Alito issuing this statement, which is in and of itself incredibly unusual, essentially announcing their desire to overturn Obergefell, which is the court’s very recent decision striking down bans on marriage for same-sex couples. And so now we know that at least two justices want to overturn Obgerfell likely and have made that announcement, an incredibly chilling, maybe four-page statement. We are also, we know that we’re about to begin confirmation hearings for Judge Barrett, who likely shares that view. And so I think where the homosexual heart attacks really sort of escalated this week was, are we really in a position we’re about to potentially re-litigate something that was resolved just five years ago, and are marriages for same-sex couples in jeopardy in some way?
Phillip Picardi: OK, I have about a million follow-up questions, but I’ll try to keep it brief because I know that you have to get back to saving all of our lives. So let’s just summarize what you just said, which is—tell me if I’m getting this right—there’s not an entirely slim chance that Donald Trump and the people who voted for him may actually have set the stage to reverse marriage equality for LGBTQ Americans. Is that, am I saying that right?
Chase Strangio: So yes and no. I want to put people at ease somewhat, because I think it is slim still and I think we have a lot of power still to stop it. However, it is true that the current president, the justices on the court—and by the way, Thomas and Alito were not put on the court by Trump, so this is a movement that has gone on for a long time—are sort of increasingly poised to try to do this. And this being overturned marriage equality for same-sex couples. Where I would say, you know, don’t panic completely just yet is, it’s only two justices. It would take time to get up to the court. So an actual sort of full assault on Obergefell would take a year or two before it actually reaches the court such that they could do it. And we as individuals, as people who have the ability to organize and advocate, can change the conditions under which we are living, through our advocacy, through our organizing. And I also think that I am not certain that there are five votes on the court to do it. So, yes, we should be concerned. Yes, Donald Trump and those who support him and those people on the court who already are inclined to hate us are sort of moving in this direction. And we still have so many tools at our disposal to to keep fighting back.
Phillip Picardi: OK, so if you can just pretend like I’m Elle Wood in Legally Blond, but like still in my first semester at law school, I’m just wondering how it’s possible for the Supreme Court to undo a decision that was already weighed by the Supreme Court, like, aren’t we already done with this? How can they just go back and say, let’s change it again?
Chase Strangio: Well, so yes. So there’s sort of like a “both and” here.
Phillip Picardi: OK.
Chase Strangio: You know, so the first is the Supreme Court can do whatever it wants.
Phillip Picardi: I hate that.
Chase Strangio: So big question about sort of how we have as a society invested so much power and nine individuals who are appointed by one individual and confirmed by, you know, a semi-Democratic, but not so much, Senate and then have their job for life? So a big question about sort of our government and its structure as a general matter. But the court has a tremendous amount of power and that power includes reversing itself when it sees fit. Now, that sort of ‘and’ here is the court also at least sort of historically touts this notion of stare decisis, which is the following of precedent. And it’s very unusual for the court to overturn its past precedent. It’s unheard of for the court to overturn such recent precedent. So just for some context, and this is in the LGBTQ context, in 1986, the court decided Bowers v. Hardwick, which was a decision that said that it was perfectly legal to criminalize sodomy between consenting same-sex partners. So Bowers is this horrible decision from 1986 that allows for the criminalization of sodomy. In 2003, the court directly overturns Bowers, saying, you know, and essentially the majority in Lawrence v. Texas says Bowers was wrong when it was decided and it’s wrong today. And that is an example of the court overturning itself. However, that was 17 years later, and that is generally thought to be an incredibly quick reversal for the court. And so I think that one of the chilling things about the Thomas and Alito statement is that it has no regard for stare decisis. It has no regard for the precedent of the court, even the court that those two individuals were sitting on! And, yes, they were in dissent, meaning they did not sign on to Obergefell in the majority. But, you know, as justices, you would think that they would at least have some respect for precedent. But again, we’re in this incredibly uncertain time. And as another example, just this last term, the court decided to hear a case called June Medical, which was abortion restriction case that was almost identical to the case, Whole Woman’s Health that was decided just a few years earlier. Now, in June Medical, Roberts sides with the four liberals and strikes down the Louisiana restriction on abortion, citing the precedent of Whole Woman’s Health. However, we now no longer have Justice Ginsburg. So the question of whether or not this court is going to respect even its most recent precedent is really up in the air right now.
Phillip Picardi: And honestly, with the way that everything else is going in American politics, we keep on saying we’re living in unprecedented times so why would we be surprised if something unprecedented happened with the Supreme Court. Like, for instance, a known religious radical such as Amy Coney Barrett being confirmed and then taking up stripping LGBTQ people of their rights as her mantle, as is something that she has demonstrated that she, at least through her ideology, that she actually wants to do.
Chase Strangio: Yeah, and I think that’s absolutely right. That’s certainly that is her orientation. That is what she believes. She’s, we should be very concerned about her agenda. But I also think we should, even short of overturning a Obergefell, I think that we should be gravely concerned, sort of similar to the context of abortion, where even though Roe hasn’t been directly overturned, we’ve seen assault after assault after assault on the right to abortion, such that the right itself so limited. And I think that is also what we can expect. So even if we don’t see an overturning of a Obergefell in two or three years—which again, I do think is relatively unlikely, though not impossible and and let’s see what happens in the next few months—but I think what is very likely and what we should be incredibly vigilant about is the continued limitation of the precedents that we have, and not just Obergefell, but even Bostock and even potentially Lawrence, you know? Who knows the levels in which this court is going to open the door for states and other government bodies to expand discrimination against LGBTQ people. And so I think we do have a lot of reason to be concerned. I think we should be concerned, even short of the overturning of Obergefell and I think we have a lot of questions that are open that we’re going to have more clarity on after we see what happens in the next few months with the election in the confirmation hearings.
Phillip Picardi: I know that, you know, one of the things that we’ve talked about before is that when you’re appearing as a lawyer before the Supreme Court and you’re preparing your arguments, you understand the, not just the makeup of the court in terms of conservative versus liberal, but you also understand the justices in terms of their religious orientations and how religion informs their own approaches to justice. Is that, does that sound accurate?
Chase Strangio: Yeah. I mean, I think in front of every sort of judicial body, I think we really you know, you think about the human beings that you’re presenting your arguments in front of, including their faith.
Phillip Picardi: And so in those terms, how have you seen the religious right infiltrate the judicial system? And how does it make you feel about the future of America as a country?
Chase Strangio: Oh, wow, these are big questions. So I think that the religious right and sort of the anti-LGBT anti-civil rights groups have prioritized the judiciary in ways that is incredibly strategic for them and incredibly terrifying for me personally and I think for anyone who’s trying to litigate sort of civil rights cases. And we have had this president have 200 judges confirmed, many of whom were leaders in anti-trans movements before they obtained lifetime appointments on the federal bench. And so it makes it almost impossible sometimes to think about how to prepare an argument if it’s before someone like, say, Judge Duncan, who’s now on the 5th Circuit, who led the litigation against Gavin Graham and in support of HB2 in North Carolina. And that would be akin to sort of what it would be like to argue a case before a Justice Barrett, where, you know, that the individual’s life view and understanding of the law is not just that you don’t deserve rights, but that potentially that you shouldn’t exist at all. I think that makes it difficult for lawyers to present the case, knowing the orientation of the judges and the justices in that direction. I also think it’s another way that we’re going to see trans lawyers and other lawyers who have been excluded from the profession pushed out because it’s incredibly difficult to argue a case on behalf of yourself and your community when you know you’re arguing it before someone who actively hates you. And so it’s a reason why we’re also going to see sort of less representation in the advocacy community of lawyers who are arguing these cases and advocating these cases because it’s so difficult, and it’s another reason why we have to have more robust strategies to transform the federal judiciary so that not just more rights are protected and, but more advocates are included.
Phillip Picardi: But as a lawyer, what does your profession teach you? How do you interpret the freedom of religion versus how Justices Alito and Thomas seem to have determined what freedom of religion means? Like, what is the difference between how you see freedom of religion versus how the religious right is trying to make religious freedom defined according to American society?
Chase Strangio: Yeah, I mean, from my perspective, when you’re talking about sort of general laws that apply to everyone, you know, you’re going to have to come up with an incredibly persuasive reason why it infringes upon your religious beliefs. However, when it comes to Alito and Thomas, they believe that just the mere existence of a right for LGBTQ people infringes the religious liberty rights of others, and so when they wrote their statement in the Davis case with regard to a Obergefell, they had this whole notion that just the very fact that other people are having these legal protections is somehow infringing the rights of others. Whereas I don’t conceptualize free exercise that way at all. And in fact, they don’t either when it comes to non-Christian faiths, as we saw with their decision in the Muslim ban litigation as just one example. And so we’re seeing more of a sort of theocratic approach and a sort of Christian primacy approach to the law where the ability to practice one’s Christian faith is privileged above even general laws that apply to everyone, like nondiscrimination laws, and even with respect to laws that infringe upon the free exercise rights of other faiths. So I think that, you know, there’s a lot of hypocrisy when it comes to how free exercise is conceptualized in the law, but I think in general, there’s a lot of hypocrisy in the law, full stop. Which is just another reason why we really have to think about how much power we give over to the courts when it can so easily be wielded in such destructive ways,
Phillip Picardi: Hypocrisy in government, hypocrisy in religion—I wish I could say I’m shocked, but truly I am anything but. But I don’t want to end here because I don’t want to end on a down note so I’m going to bring you back to a conversation that we had not too long ago when you won your case at the Supreme Court to make employment discrimination against LGBTQ Americans illegal. Thank you so much for all of your hard work in accomplishing that. You are a true hero. And I remember what you said to me, which I think changed my whole perception of all of this Supreme Court stuff. You said that when you were arguing the case, you believed that the people outside of the courts, meaning the protesters, meaning the trans people who you invited to the Supreme Court that day, many of whom were sitting in that courtroom, many of whom were sharing their own stories—you believed they had an impact on the judge’s final decision. That a part of you was surprised at the final decision that came down, and that you felt you had activists and activism to think. Can you explain what you meant by that?
Chase Strangio: Yeah, even the ability for Gabriel and I as two trans lawyers to work on the case was the product of so many years of activism and organizing and the blueprint that, you know, that Pauli Murray set that Miss Major set that Sylvia and Marsha set, so every step of the way was sort of the product of work, of people being willing to demand that they exist on their own terms. So every step of the way gets us to a place where we’re advocating and we have advocates from the communities we’re talking about who are not just being talked about, but are talking about ourselves. And then we’re presenting arguments to this body, but these are human beings. They have, you know, even the justices that are in their 80s and their 90s have children and grandchildren. They have clerks. And those people are existing in the world that we are all creating together. And ultimately, when you’re litigating cases, you watch yourself make the same legal arguments one year and then five years later, those losing arguments are winning arguments. And the law doesn’t change. What changes is the world in which the decider is living. The judge is looking out on a world that is, that is holding trans existence in a different way. And so when Justice Gorsuch writes Bostock, you know, in June or whenever he finishes drafting that opinion, he is remembering that there were hundreds and hundreds of people outside of the courtroom who are demanding to be seen, to be named, to be able to work without being fired just because of who they are. And that’s incredibly different than the justices that might have heard the case 10 years prior. Which again, comes back to the power that we have to shape the outcome of not just the election, not just the next three months, but the contours and the context for the cases that are litigated before these, you know, lifetime-appointed federal judges that can seem unmovable, and maybe some of them are, but some of them aren’t. And I think that it’s on us to continue to push the bounds of what’s possible and we do that by making space for more of us to exist, to be heard, to be well fed, well cared for, well housed and joyful, and then that in turn transforms the context in which all of these cases are heard and decided. And so we still have power over that.
Phillip Picardi: So I know we’ve talked a lot about the ways in which religion is used as a force against equality in America and particularly in the judiciary, so I just want to share a memory that I have of standing outside the Supreme Court the day you were going in for your arguments with Amy Stevens—may she rest in power. I turned around to see a parade of people marching. They were affiliated with Housing Works, which, of course, is a noted LGBTQ charity that provides shelter and clothing and services to LGBTQ people and other folks who are in need. And I saw at the front of this line a bunch of clergy members, these clergy members came from different faith communities and they were from all over the Northeast I believe. There was a group from Philadelphia, there was also a bus in from New York City. And the clergy members put themselves front and center because the marchers were basically doing an act of civil disobedience, which forced them to step into the middle of the street and stop traffic. And basically, they all offered themselves up for arrest and they all broke out in song, got down on their knees, and held their hands up and waited to be arrested. And I remember standing there on the sidewalk, I was interviewing people for Out Magazine at the time, and I watched these clergy members just offer themselves up for arrest, you know? They were the ones who set the tone. So the police came forward and whatever, arrested them, threw them in the back of the vans, whatever the cops do. And it was a really powerful moment because I remembered that not all instances of faith are oriented against justice. And it was a powerful moment to see just how differently people in this country can express their faith. And just how powerful faith can be when you identify its true origins of power. And it was a really powerful moment because I remembered that not all instances of faith here are oriented against justice. It was a powerful moment to see just how differently people in this country can express their faith, and just how powerful faith can be when you identify as true origins of power. And I really wouldn’t have seen that if it wasn’t for you compelling us all to be there that day. So thank you.
Chase Strangio: Thank you for sharing that. And I think it is such an important reminder and all of the advocacy that I do, whether it’s in state legislatures, whether it’s in courts where we’re getting briefs, whether it’s in organizing, that there are always faith voices leading on the side of LGBTQ justice. And so I think it’s so important that we not associate faith with the oppression and the discrimination against our communities, because it’s absolutely right that we have so many faith voices speaking out in support of the most beautiful and transformative justice.
Phillip Picardi: Thank you for being here, chase.
Chase Strangio: Thank you Phill. It was just absolutely a pleasure. And I think even though it’s depressing, we are going to keep building those beautiful movements.
Phillip Picardi: Well, that’s all for our show today. If you like what you hear, please subscribe, leave a review and tell everyone you love to listen. Maybe it’ll bring you good karma, but no guarantees here because that might bring me bad karma. In any case, thanks for listening. We’ll see you next week.
Unholier Than Thou is a Crooked Media production. Elisa Gutierrez is our producer, with production support from Reuben Davis. The theme song is by Taka Yasuzawa. The show is executive produced by me, Lyra Smith and Sarah Geismer. Thanks for listening.