Eric Rothschild joined Americans United’s Legal Department in late September as litigation counsel. A graduate of Duke University and the University of Pennsylvania School of Law, Rothschild worked with Americans United in 2005 as lead counsel in Kitzmiller v. Dover, which struck down the teaching of “intelligent design” in a Pennsylvania school district.
Rothschild shared some thoughts about Americans United and church-state issues in a recent interview with Church & State.
Q. What made you want to work for Americans United?
Rothschild: I spent more than 20 years at Pepper Hamilton, a private law firm in Philadelphia. I was very happy there and learned so much from my colleagues and experiences. But in my heart of hearts, I was always a civil rights lawyer. Pepper afforded me wonderful opportunities to do civil rights work, including with Americans United. So coming to work at AU is like moving in with a familiar friend that I share so many interests with. I feel very fortunate that I have been presented this opportunity.
Q. You were lead counsel in the Dover, Pa., “intelligent design” case in 2005. There were a lot of great moments in that case. Can you share a few of your favorite ones?
Rothschild: I have two kinds of memories about the trial – there were personal accomplishments that I am really proud of; and then there are aspects of the trial that I had nothing to do with, and probably made me even prouder.
Probably my most important responsibility was cross-examining Michael Behe, the school district’s lead expert for the proposition that intelligent design is science. If the school district was going to have any chance to win the case, Behe had to shine for them. He didn’t. A New Yorker article described my cross-examination as “cheerfully merciless.” It doesn’t get much better for a trial lawyer!
I didn’t present any of our plaintiff witnesses at trial – other colleagues in the case did that. Each one impressed or surprised me with their personal explanation of why they had stuck their neck out to participate in the case. I remember one plaintiff, Fred Callahan – a soft-spoken businessman – testifying with emotion: “What am I supposed to do, tolerate a small intrusion into my First Amendment rights? Well, I’m not going to.” It was a great reminder that our constitutional rights are not abstractions or the sole province of lawyers – they are very personal.
Q. Do you remember where you were when the decision came down? Were you surprised that it was such a decisive victory?
Rothschild: Receiving the decision was, of course, one of the very best memories. Judge John Jones gave the parties notice a few days before the trial when it would be issued, so members of the team from Pepper, Americans United, ACLU of Pennsylvania and the National Center for Science Education were all gathered at Pepper’s office in Harrisburg, the city where the trial had been held.
When we received it by email, we all started frantically reading through it. First, we had to find out the result – I remember I had to read that several times to make sure I had it right, before spreading the news outside our legal team. Then each of us went page by page, and interrupted each other with exultations because we were so gratified by the scope of the decision.
I don’t think we were surprised by the opinion. We felt like we were winning the trial each and every day, and that the correctness of our positions on science, religion and law had been forcefully demonstrated. We just didn’t know whether the judge would write a narrow opinion or really address all the arguments that each of the parties made.
Jones made the important judgment that he should not limit himself to a narrow result, but that he should provide other courts and school districts the benefit of learning everything he learned during a six-week trial. His decision wouldn’t bind them, but it could guide them. And it has. In the 11 years since the decision, no school district or state has approved the teaching of intelligent decision or other types of creationism.
Q. Looking at the big picture, where do you think we are when it comes to separation of church and state? Are there areas where we need to shore up the church-state wall?
Rothschild: I am going to answer this question with a large dose of humility because I have a lot to learn on this front. But what I am most concerned with is the free exercise of religion – obviously an important personal right in our country – being used as a means to force religious beliefs and practices, often majority beliefs and practices, on people who don’t have the same beliefs. This can result in a pretty potent form of discrimination. The imposition of religious beliefs by employers on employee health care is a particularly troubling example.
Q. The Supreme Court’s marriage equality decision seems to have sparked a nationwide debate over the meaning of religious freedom. We’ve seen the owners of for-profit businesses and even government officials, such as Kim Davis in Kentucky, insist that they have a right under religious freedom to refuse service to same-sex couples. How can we best resolve these issues?
Rothschild: This is another example of what I was talking about in my last answer. We can’t have public servants like Kim Davis act as a law unto themselves simply because they have religious beliefs that conflict with their official duties. I don’t see an “accommodation” for that kind of behavior that wouldn’t compromise the rights of the citizens they are obligated, by their office, to serve. At the same time, advocates in our position need to be mindful that religious practitioners’ private beliefs and practices should be given a wide and respectful berth.
Q. From a demographic standpoint, the country is changing. Growing numbers of people identify their religious affiliation as “none,” and Protestants, once the dominant faith in America, may soon drop below 50 percent. How do you think these changes will affect the separation of church and state?
Rothschild: I’m not sure that in the short term it will change things that much. The sorting we see in our country from a political standpoint probably also applies to religious affiliation, and, therefore, in some parts of the country, the desire for more religious activity in the public sphere will be as or more pronounced than it has ever been.
Q. Americans United sponsored the Greece v. Galloway case before the Supreme Court dealing with legislative prayer. Unfortunately, we lost. Many of our members tell us they feel like second-class citizens when they attend local government meeting because they don’t share the prayer being recited. Where should we go from here?
Rothschild: I find this to be a super-frustrating topic, because the Supreme Court – although it doesn’t say it this way – has come pretty close to treating legislative prayer (inclusive of municipal governing bodies) as some kind of exception to the separation of church and state. And to me, it seems like it should be one of the more obvious church-state violations. But, recognizing that it is unlikely that the Supreme Court does away with legislative prayer entirely, perhaps there is a germ of promise in Judge Harvie Wilkinson’s dissent to the U.S. 4th Circuit’s recent decision in the Rowan County case, which argued for a sort of “totality of the circumstances” analysis of legislative prayer, which Rowan County failed in his eyes. I hope that the eventual nine-member Supreme Court will apply that kind of scrutiny to legislative prayer cases.
Q. Is there anything else you would like to share with our members?
Rothschild: AU and its members are getting a very energetic lawyer to work with and for them. I am passionate about our issues. I love “nerding out” in all the disciplines – history, philosophy, science, theology, politics – that bear on the protection of our First Amendment rights. I love to try cases and have had my biggest professional successes trying civil rights cases just like those that I will be working on at AU.