Yasha Lange: Hi Julia, my name is Yasha. I'm from Amsterdam in the Netherlands. I wondered if the Supreme Court has ever ruled on the balance between personal liberty on the one hand, and public health on the other. Can the government limit the freedom of individuals in order to protect the health of everybody else? 

Julia Longoria: I'm Julia Longoria. This is More Perfect. It feels like everyday, I get a reminder of how much the COVID pandemic has completely changed our world. About seven million people have died of COVID. Vaccination is now a topic on the campaign trail. So I've been thinking a lot about this question a listener posed to us: about the balance between our individual freedoms and our health.

Yasha Lange: And it's a difficult question and one that really interests me personally because I strongly believe in both. I believe in personal freedom, in liberty, the right to make your own choices in life. That’s like a core value to me. But so is the health and safety of everybody around me. I would really like to know whether the Supreme Court has ever ruled on this and whether they've been able to balance or find a balance between these two rights, and if so, how and where?

Julia Longoria: In the last few years, the Supreme Court has had to balance these two interests - most often ruling against public health. They’ve rejected vaccine and mask mandates, and social distancing requirements. But that hasn’t always been the case. We looked further back in history, to one of the first times the Court ever weighed these two interests. In a case that became a basis for our country’s public health system. This week the story of that case: 

Pastor Robin Lutjohann: Hello, this is Robin.

Gabrielle Berbey: Hi, is this the Swedish Lutheran church in Cambridge?

Pastor Robin Lutjohann: [chuckles] We haven't been that in a very long time, but yes, this is. I’m the pastor of Faith Lutheran Church. How can I help you?

Gabrielle Berbey: Oh, okay. Thank you. Um, I'm working on a story about Pastor Henning Jacobson? 

Pastor Robin Lutjohann: Yep. I'm sure this is about vaccination?

Gabrielle Berbey: Yes? But.... 

Julia Longoria: Producer Gabrielle Berbey cold-called a church in Cambridge, Massachusetts. This was actually a couple years ago, when Gabrielle and I were working on another WNYC Studios show – called The Experiment, a co-production with the Atlantic Magazine. Gabrielle was searching for the very first vaccine case to come before the Supreme Court. It all began in this church over 100 years ago.

Gabrielle Berbey: Thank you for talking to me. This is like such a random call.

Pastor Robin Lutjohann: No, no, no. I love this kind of stuff.

Julia Longoria: Where the current pastor picked up the phone. 

Gabrielle Berbey: Are you in the church now? 

Pastor Robin Lutjohann: Yeah, yeah. This is our organist practicing. I just put on my mask. We have a very talented organist. Here, listen.

[Distorted organ music plays]

Gabrielle Berbey: Oh, I can hear that. Yeah.   

Julia Longoria: The original pastor of this church was a guy named Henning Jacobson who took a personal and very public stand over vaccination in 1902. 

Gabrielle Berbey: What are you seeing right now? 

Pastor Robin Lutjohann: I see two portraits of Henning Jacobson leaning against the wall.  

[Church organ music intensifies] 

Pastor Robin Lutjohann: He looks like a, uh, like wild hair and a wild beard kind of. I think he was like, kind of like a fire and brimstone sort of preacher. He's dignified, I would say. Dignified. Sort of asking what are you going to do with me? 

Gabrielle Berbey: [laughs]

Pastor Robin Lutjohann: And I'm like, I don't know, Henning, 

Gabrielle Berbey: [laughs] 

Pastor Robin Lutjohann: I don't know, man.

Pastor Robin Lutjohann: I mean, it's almost a little bit unfortunate that like the thing that you Google his name, the first thing that pops up is Henning Jacobson versus the State of Massachusetts, which is like, you know, in some sense, I suppose he was the first anti-vaxxer.

[OYEZ OYEZ OYEZ]

Julia Longoria: This week on More Perfect, the story of a man who took a stand for something he believed in, and asked the Supreme Court to step into an argument our country is still having, over where the line is between our rights over our bodies and our duty to others.

[OYEZ: God save the United States and this honorable Court. OYEZ OYEZ OYEZ]

Julia Longoria: This is More Perfect. I'm Julia Longoria. We’re back with a story we reported back in 2021. We revisit a Supreme Court case from over a century ago, brought by a man some might call the original anti-vaxxer. 

Pastor Robin Lutjohann: I once got a call from Swedish Public Radio. Did you know there was such a thing? I didn't.

Julia Longoria: Being the current pastor of a church founded by an anti-vaxxer is a bit of an odd thing for Pastor Lutjohann..

Julia Longoria: Am I saying that right, by the way, Lutjohann?

Pastor Robin Lutjohann: Yeah.

Julia Longoria: Cool.

Pastor Robin Lutjohann: Yeah. It's German.

Julia Longoria: Because of the history, people call the church with certain expectations. 

Pastor Robin Lutjohann: I think they called me thinking that ours was like an anti, anti-vaccine church or something like that? And I'm like, sorry, man, I have to disappoint you. We had a flu shot at the soup kitchen at our church just the other day. 

Julia Longoria: The story of Henning Jacobson’s case has this weird quality about it, where people keep reaching back to try and find some kind of meaning from the life of this one antivax pastor.

[classical music]

Julia Longoria: So if we were going to do the movie in your head of how Henning's life went. How does it start? 

Pastor Robin Lutjohann: Let's see. With the little knowledge I have, I have to figure out a movie. The movie would have to start in Sweden.

Julia Longoria: The movie would start in Henning's boyhood. In 19th century rural Sweden. In a town called Yllestad, which is a remote community settled near a big blue lake, surrounded by rolling plains.  

Pastor Robin Lutjohann: If you wanted to focus the movie on what he is most famous or infamous for, which is the Supreme Court case, then a Hollywood movie would probably start with him sweating and in pain having his first bad experience of the vaccine. Henning first got vaccinated in Sweden when he was six years old. 

And then he carries that memory into his later life. And then I imagined him coming to this country, wide-eyed, 13 years old, and sort of being struck by the diversity of America. Then he ends up going to college and seminary. All I know about him is from the few records we have here at church. It's really not much to go on. You know, you should really talk to a historian. [laughs]

[music out with record scratch cut] 

Julia Longoria: Can you introduce yourself?

Michael Wilirch: Sure, I’m Michael Willrich, I’m the chair of the History Department at Brandeis University and the author of “POX: An American History.” 

Julia Longoria: Professor Willrich has his own version of the Henning Jacobson biopic. 

Michael Wilirch: I would open with him going down to the docks in Boston.

Julia Longoria: A grown Henning Jacobson would take frequent trips from his home in Cambridge down to the city of Boston.

Michael Wilirch: Waiting as immigrant ships came into the harbor, meeting the Swedish immigrants who came off those ships and finding jobs and housing for them. And basically being a kind of working class minister.

Pastor Robin Lutjohann: He just worked on building this community of people from scratch, gathering people together. 

Julia Longoria: Pastor Lutjohann calls him a sort of community organizer. 

Pastor Robin Lutjohann: He founded a church, an immigrant church here. Among people who were for the most part, poor laborers who came to this country not with a lot of money seeking economic opportunity.

[music]

Pastor Robin Lutjohann: 1901, there's a smallpox outbreak in the Northeast of this country. 

Julia Longoria: Smallpox was one of the most deadly diseases the world had ever seen at that point. It would result in fevers and oozing sores that would sometimes cover people’s entire face and body. It was the same disease that European settlers brought to North America in the 17th century when it killed Native American populations and many, many people. 200 years later, there were still outbreaks in major U.S. cities, and in 1901, Cambridge was in the middle of one of those outbreaks. 

Michael Wilirch: It was part of this wave of epidemics across the nation. 

Julia Longoria: So the city of Cambridge decided to make vaccination mandatory.

Pastor Robin Lutjohann: They're very diligent about it. They go door to door. 

Michael Wilirch: And I guess Jacobson was sufficiently prominent because of his role as a minister in the community that the chairman of the local board of health came to his door and knocked on his door and, you know, offered slash asked slash demanded that he be vaccinated and Jacobson refused.

Pastor Robin Lutjohann: He refuses because he believed that it was his right to refuse vaccination. He’s like, nobody can tell me what to put in my body. Part of the reason for that was that he had had some adverse side effects taking vaccines previously. And I think his son did, as well. And so. I imagine he was probably scared by that experience, and he didn't want to live through it again.

Julia Longoria: Was there good reason for people to be scared or skeptical of vaccines?

Michael Wilirch: There was pretty good reason.  Public health departments would send out teams of vaccinators very often in the middle of the night into tenement districts. Uh, usually inhabited by, you know, immigrant working class people. They go door to door on these sort of vaccine raids. And they’d inspect the arms of everyone who lived in these homes to see that they had been recently vaccinated, that they had a kind of vaccine scar on their upper arms. In his own community of Cambridge, people are jumping out of windows and running the other way, or getting doctors to sign phony vaccination certificates. I found one episode, in the historical record from Kentucky where the vaccinators went into an African-American neighborhood of this community. And, uh, ordered everybody to get vaccinated and those who refused were handcuffed and vaccinated at gunpoint.  

Julia Longoria: Wow. 

Michael Wilirch: There was outright violence used to compel people to be vaccinated and Jacobson certainly would have been aware of that.

Julia Longoria: I mean, call me an anti-vaxxer, but that sounds really extreme. 

Michael Wilirch: It's the very extreme edge of this.

Julia Longoria: Though most Americans did accept vaccines at the time, this kind of forcible vaccination was part of the reason there was a healthy transatlantic anti-vaccination movement already in motion.

Michael Wilirch: Every local community of any significant size might have an anti-vaccination league or society. Typically they'd formed during an epidemic or during some period when compulsion was on the rise. They'd meet in small meeting places. They would publish leaflets, uh, that they'd circulate on the city streets.

Julia Longoria: Jacobson attended at least one anti-vax meeting but he wasn’t officially part of the movement. All he did was, for himself, refuse to get vaccinated. 

Michael Wilirch: This sort of set this chain of events into motion in which he ended up being brought before a local criminal court, and the charge was the crime of refusing vaccination.  

Julia Longoria: And eventually, a team of lawyers took on Jacobson's case and fought it in court.

Wendy Parmet: The question of the case was whether Jacobson could be fined $5 for refusing to be vaccinated. 

Julia Longoria: To help us understand Jacobson, the case, we called law professor Wendy Parmet. 

Wendy Parmet: One of my strange, pandemic outings over the summer was in search of the graveyard of one of Jacobson's lawyers.

Julia Longoria: She lives in Boston, where she’s a director at Northeastern's Center for Health Policy and Law.

Wendy Parmet: I think I found what is his tombstone only a few miles away from my house. 

Julia Longoria: Really?

Wendy Parmet: And I went “WOW” you know, nobody else knows what the hell I'm doing,

Julia Longoria: [laughs] 

Wendy Parmet: [laughs] But it something to do on a pandemic Saturday, right? 

Julia Longoria: She is completely obsessed with this case. Like, dedicated much of her career to understanding it.

Wendy Parmet: Jacobson to me is this incredibly rich case. It is so Delphic. 

[music]

Julia Longoria: Delphic, like as in like a Greek Oracle? 

Wendy Parmet: Yeah, in the sense that different people read it differently. Because you can see in it what you want to see in it. And I think as with many texts, we bring our own worldviews into what we see in Jacobson.  

Julia Longoria: You can see this in the arguments that Jacobson’s lawyers made, they were all over the map, laying out almost like a menu of options for why someone might object to a vaccine.

Michael Wilirch: They sort of threw the whole Constitutional kitchen sink at this case. They argued that vaccination was dangerous, that compulsion was unnecessary.  That, this was a violation of every individual's right to make choices about their own bodies.  

Julia Longoria: Religious ideas also made their way into some of their arguments.

Wendy Parmet: There's a lot of religious terminology in the briefs. I don't have the exact quote up. Um, my computer went to bed. Can I, can you 

Julia Longoria: Yeah yeah, yeah definitely, 

Wendy Parmet: Give me one second to wake up my computer?

Julia Longoria: Of course.

Wendy Parmet: And I will find it. Okay. So this is from the brief before the Massachusetts Supreme Judicial Court, filed on behalf of Jacobson asked quote, “Can the free citizen of Massachusetts who is not yet a pagan nor an idolater, or be compelled to undergo this rise and to participate in this new, no revived form of worship of the sacred cow?”

Julia Longoria: As in vaccines are a worship of the sacred cow?

Wendy Parmet: Well, there was this view. The word vaccine itself is from the Latin for cow.

Julia Longoria: The word vaccine comes from vacca or cow. Cows were a key part of the first vaccines ever made for smallpox

Michael Wilirch: A country doctor might keep a cow on hand for the purpose of producing vaccine.

Julia Longoria: Scientists found that people who were exposed to cowpox from cows had immunity to smallpox.

Michael Wilirch:  Smallpox vaccine as material was live viruses taken from oozing sores on the bellies of calves. 

Julia Longoria:  Vaccines and their precursors injected the material from boils.

Wendy Parmet: The pus and put it under the skin of somebody who had not had smallpox. I'm probably telling you more than you want to know.

Julia Longoria: That just like opened up a new room in my brain, I had no idea.

Wendy Parmet: And you can find similar language in contemporary anti-vaccinationist websites. It's pagan. You're putting something of the cow in you. You're worshiping the cow in the revering of vaccination.

Julia Longoria: Wow.

Wendy Parmet: This fear and anger towards vaccination goes way back. This sense that it is somehow unnatural and ungodly goes way back.

Julia Longoria: These are the arguments that Jacobson’s lawyers made to a judge but the court rejected those arguments. Jacobson lost his case at the local level. And then his lawyers appealed to the Supreme Court. 

Wendy Parmet: Jacobson is the first case where the Supreme Court took a claim of sovereignty over one's body in terms of medical treatment seriously. 

Julia Longoria: This was one of the first times the Court was presented with this big question: Where do our rights over our bodies end and our duty to the common good begin? For Jacobson, the question was, could he be fined for choosing his rights over his own body over his duty to the people of Massachusetts? 

Wendy Parmet: The Court held that he could be.

Julia Longoria: The Supreme Court said, yes Jacobson you have to pay the fine. 

Michael Wilirch: The Court's decision was really pretty interesting. 

Julia Longoria: Historian Michael Willrich again.

 Michael Wilirch: The opinion of the Court was written by Justice John Marshall Harlan, who was a Civil War veteran. And for him, it was clear that this case was a legitimate exercise of the police power of the state. Smallpox was extremely dangerous, and he insisted that by the same logic that a government can raise an army to prevent a military invasion, and can compel individual citizens to take up arms and risk being shot down in the defense of their country. By that same sort of rationale, the government can fight off a deadly disease and demand individuals to be vaccinated, even if it violated their sense of personal liberty or conscience or whatever.

Pastor Robin Lutjohann: When there is a virus or some other disease coming in, personal liberty has to take a backseat to public safety. 

Julia Longoria: Pastor Robin Luthjohann again.

Pastor Robin Lutjohann: And this is a sticky and tricky thing to argue and to try to get right. And it turns out that he was on the losing side of history there.

[music] 

Julia Longoria: Since 1900, an estimated 300 million people in the world have died from smallpox. It was because of these mass vaccination campaigns, that the very last known natural case of smallpox was recorded in 1977. It’s the first human disease to have been completely eradicated from the planet because of vaccines. 

Wendy Parmet: There was this very short period, the wisp of history where humanity thought we had conquered infection.

Julia Longoria: After the smallpox outbreak that Jacobson lived through and the influenza pandemic of 1918, there weren’t very many large epidemics in the U.S. until 60 years later, when we started to battle AIDS.  

Wendy Parmet: We just sort of assumed that contagion was only the stuff of horror films and movies. It was behind us. 

Wendy Parmet: Once you recognize contagion's ubiquity, you realize so much of human history has been forged by battles over contagion. Contagion and epidemics have brought out the best in humanity and the worst in humanity.  Contagions have been the excuse for so many atrocities in the world. And so much discrimination, uh, which is where, you know, plague came and Jews were killed and witches were burned and, we see this throughout history and so it's a very delicate balance. 

Julia Longoria: Contagion brings out fear in all of us. It’s not hard to get inside of Henning Jacobson’s head when he refused the vaccine. He did it because he was scared. 

Pastor Robin Lutjohann: I think I mentioned Henning Jacobson and his legacy in my sermon.

Julia Longoria: Pastor Lutjohann has thought a lot about Jacobson's fear. At the very beginning of coronavirus, when everything was just starting to shut down, he thought about what to say to his congregation. He didn’t want them to be afraid, and so he preached about a story in the bible that he thought could help.

Pastor Robin Lutjohann: It was about how, like, there are these poisonous snakes, 

Julia Longoria: In the book of Numbers, God sent down a plague of poisonous snakes on the people of Israel.

Pastor Robin Lutjohann: The disobedient people of God wandering through the desert are punished by God.

 Julia Longoria: And Moses, who was chosen by God to lead these people through the desert, watched as deadly snakes killed them. One by one. They were dying in droves, and people were terrified. 

Pastor Robin Lutjohann: And then Moses does this strange thing where he has a bronze snake made and he puts it up on a pillar and he displays it in front of everyone. And everybody who looks at the bronze snake on the pillar gets healed. So that's the story.

Gabrielle Berbey: Okay. 

Pastor Robin Lutjohann: And there's a number of different ways to interpret that.

Gabrielle Berbey: Yeah I'm like, what's the message of that LAUGHS

Pastor Robin Lutjohann: What's the message. Right?  

[music] 

Pastor Robin Lutjohann: The healing is going to come from the poison itself. How do the people bitten by the snake get healed? By looking at an image of the very snake. I also mentioned to the congregation, you know, it's also reminiscent of a very famous image that we see so often in medical sciences, which has also a serpent around the staff.

Gabrielle Berbey: Right.

Pastor Robin Lutjohann:  This idea that somehow the deadly poison of the snake is also a way to unlock the possibility of healing and has come true in modern vaccinations. Most of the way we get vaccinations is by somehow altering the disease itself. And ironically. Injecting the disease into a human being.

I mentioned Henning and I said, look, this is not just true about medicine. This is true about a lot of our lives, you know? Do you want to overcome your deepest fears and, uh, your most profound hang-ups? Well, often it is by actually going to the root of where they come from and facing up to them rather than running away from them. You know, you can't keep running away, you got to go back to where the disease started and that's where the key is.

Julia Longoria: The Jacobson case paved the way for governments to be able to require vaccination for kids in schools. It was cited in New York and California to reject people’s religious objections to vaccines. Pastor Lutjohann is glad that Jacobson lost his case. Even if it means he’s not sure what to do with the framed portrait of Henning Jacobson. 

Pastor Robin Lutjohann: We can be grateful for his work here 

Gabrielle Berbey: Yeah

Pastor Robin Lutjohann: At the same time also saying the dude was terribly mistaken 

Gabrielle Berbey: Yeah.

Pastor Robin Lutjohann: About this, this one thing for which unfortunately he's most famous now. And I think in a way, maybe that's beautiful because it then means that we don't get to make an idol of him. We don't get to make this perfect, pristine founding father of him. You know, he was complicated. 

Julia Longoria: Henning Jacobson was complicated. And so is the legacy of his case. 20 years after his case was decided, the government used the same argument that it used against Jacobson. To make one of the darkest most infamous decisions in U.S. history.

Julia Longoria: Have you heard of Buck v. Bell?

Pastor Robin Lutjohann: No, tell me about it. 

Julia Longoria: That after the break.

Julia Longoria: From WNYC Studios, this is More Perfect, I’m Julia Longoria. Over the years, people keep reaching back into Henning Jacobson's case, looking for answers not just to vaccination questions, but to bigger questions about how much power the government should have over our bodies. And the line between our liberty and our duty to others.  

Michael Wilirch: It's just an incredibly complicated legacy because you, on the one hand, you want governments to be able to respond quickly and effectively in the public interest during a deadly epidemic. On the other hand, you want that to be carefully measured.

Julia Longoria: Historian Michael Wilirch again. The first time he read about the Jacobson case was actually as a footnote in a very different case.  

Michael Wilirch: I knew about this case, because I had written a, uh, earlier book that dealt a lot with eugenics. And Jacobson, the case was the only precedent cited by the U.S. Supreme Court in 1927 in the case of Buck versus Bell. Buck versus Bell is, you know, one of the sort of scariest U.S. Supreme Court decisions of all time.

Julia Longoria: At the center of Buck versus Bell is a woman named Carrie Buck. She was born in 1906, one year after the Supreme Court handed down Jacobson's case.

Carrie was just 3 years old when her mom, Emma Buck, was institutionalized for being quote “feeble-minded” and “sexually promiscuous.” Her dad wasn’t in the picture, so officials put Carrie in foster care with a family called Dobbs. 

She stayed with that family for 14 years until one day, she learned that she was pregnant. She said the dobbs’s nephew had raped her, but the family put her in an institution, the same one where her mom was. 

The baby Vivian was born in 1924. And that same year, Virginia passed a law that allowed the forced sterilization of people who were unfit or “afflicted with hereditary forms of insanity that are recurrent.”

The institution where Carrie and Emma were living chose Carrie as the first one to be sterilized. 

Carrie got a lawyer and took her case to the Supreme Court. 

The opinion was written by Justice Oliver Wendell Jolmes Jr.

Wendy Parmet: Oliver Wendell Holmes writes an opinion that's just very painful to read today. It's a short, pithy, appalling opinion. 

Michael Wilirch: He said that, you know, the most famous line of that case, three generations of imbeciles are enough.

The Court ruled that the state did have the power to sterilize Carrie Buck against her will. 

Wendy Parmet: It's just horrific opinion, and his only citation in that case is Jacobson versus Massachusetts.

Julia Longoria: Can you walk me through the logic there? How do you get from yes the state can vaccinate you in a smallpox epidemic to: You can sterilize a woman against her will?

Wendy Parmet: Well, it's the dangerous far end of the idea that we need to sacrifice ourselves for the common good. This is the eugenecist’s opinion, and it assumes that her children would be equally degenerate, equally impaired mentally, to be clear, none of this was true. None of this was true about her. To Justice Oliver Wendell Holmes’ point of view, Jacobson stands for the proposition that people need to sacrifice their individual, you know, we all need to give up something for the common good. He talks about how the best people are conscripted into the army to fight for the nation and giving up your fallopian tubes is no big deal. It's the dangerous perversion of Jacobson. And Jacobson's calling to the common good and Jacobson's invocation of the social contract.

[music]

Julia Longoria: As the pandemic progressed over the years, the Supreme Court has heard several cases about vaccines. In one case, they went in the opposite direction they did in Jacobson and struck down a government mask and vaccine mandate. But that same year, they also approved a vaccine mandate for healthcare workers, which the Biden Administration has since withdrawn.

And a few justices called out Jacobson, only to argue that this 100 year old case is no longer relevant.

There are certainly reasons to question the legacy of the Jacobson’s opinion, and how much it should apply to our lives today. 

But Wendy worries if you throw out the opinion altogether, that could be dangerous too. it could roll back things like school vaccine mandates that the opinion made possible. It all remains a delicate balance.

Pastor Lutjohann had always seen this case as straightforward. Jacobson was wrong, Supreme Court was right. but he didn’t know about the more complicated legacy of the decision. 

Pastor Robin Lutjohann: Tell me about it.

Julia Longoria: So Jacobson's case was cited in this ruling. Basically it said that there was a state interest in cutting fallopian tubes of someone.

Pastor Robin Lutjohann: Oh yeah, I did hear about this

Pastor Robin Lutjohann: forced sterilization of people who had mental illnesses or.

Julia Longoria: Yeah, can I read you a Supreme Court rule, a little excerpt from the Supreme Court ruling? 

Pastor Robin Lutjohann: Please

Julia Longoria: It says the principle that sustains compulsory vaccination is broad enough to cover cutting the fallopian tubes. And then it references Jacobson v. Massachusetts. And then the opinion goes on to say, three generations of imbeciles are enough.

Pastor Robin Lutjohann: Oh, my goodness. That's heartbreaking. That makes me see his case in a different light honestly.

Julia Longoria: How so?

Pastor Robin Lutjohann: Because I think that movements like eugenics that sort of deny the full dignity and personhood of people who are different in any way. It's just so obviously, for me, against, what society should stand for. You know, I'm from Germany.

And so my grandfather's generation was part of the movement that did just that to all kinds of people, dissidents, people who had cognitive disabilities. Jews. We see in many forms of dictatorship that this pattern keeps coming back. Like you want to create this ideal world that doesn't have the undesirables in it.

A part of me, I mean I'm speaking completely personally. I'm not speaking for anybody here, but like a part of me, my basic attitude would be like, I can see how in a pandemic as scary as smallpox or epidemic as the case may be that a government would decide, okay, we gotta vaccinate everybody. I can see that, I can see that case for public health being made. I, of course, absolutely cannot see a public health argument for forced sterilization of any group of people. And I'm appalled that one could go from one to the other, but I suppose I can see.

I suppose in a sense, it's the same question of personal liberty versus public safety. But the question is who gets to say what public safety is. That's messy. That's real messy. 

 Julia Longoria: I just wonder, like, thinking about him as somebody who had these convictions, who was stubborn about them, who fought all the way to the Supreme Court, right? That takes a lot of energy. That quality is not necessarily a bad thing. Right?

That's something that we value today. I mean, look, looking back on that part of his life, what do you think his life can teach us about the sort of legal battles, any battles, we're fighting today?

Pastor Robin Lutjohann: I don't know, because right now we're in a, in a historical and cultural moment, especially in this country where a lot of people are taking stances and being quite intransigent about their stances. It's very popular right now to die on a hill, as they say, and to be gung ho about it, and then have all these people online, cheering you on, as you do.

My goodness, if Henning was doing what he did today, how many people would stan him online, right? 

Julia Longoria: [laughs]

Pastor Robin Lutjohann: Like how many people would it be out there? Just like doing Kickstarter, fundraisers 

Julia Longoria: [laughs]

Pastor Robin Lutjohann: for him and all kinds of stuff. I'm almost kind of grateful that that wasn't possible back then, because who knows that kind of stuff can go to your head.

That kind of stuff can just totally change the direction of what you originally intended to do. I want to make a case for actually less gung-ho intransigeants, less dying on a hill, less stubbornness and defending causes, and more listening, assuming the best about the other person's intention. Try to understand what they're doing, why they're doing it, what they're going through. And then try to make some sort of judgment. And there's plenty little about that happening right now, unfortunately.

And maybe that wasn't Henning’s strongest quality. But he subscribed to the same confessions and beliefs that I do. And I think that's, that's our task right now, too.

Gabrielle Berbey: More Perfect is a production of WNYC Studios.

This episode first aired on The Experiment, which was a co-production with the Atlantic Magazine. 

And since this episode aired, we heard the news that there was a fire at Pastor Lutjohann’s church, Faith Lutheran in Cambridge. He still leads the congregation out of another church building in Cambridge until Faith Lutheran gets rebuilt.

It was produced by Julia Longoria, and me, Gabrielle Berbey, with editing by Katherine Wells. Fact-check by Will Gordon. Sound design by David Herman. And music by Tasty Morsels. 

It was updated by Emily Siner, Jenny Lawton, Emily Madray and Sophie Hurwitz.

Special thanks to Sam Moyn.

The More Perfect team also includes Emily Botein, Whitney Jones, Alyssa Edes, Salman Ahad Khan and Joe Plourde. 

Our theme is by Alex Overington, and the episode art is by Candice Evers. 

If you want more stories about the Supreme Court, we have plenty of old episodes for you to explore. Subscribe to More Perfect and scroll back for more than two dozen episodes.  

Supreme Court audio is from Oyez — a free law project by Justia and the Legal Information Institute of Cornell Law School.

Support for More Perfect is provided in part by The Smart Family Fun, and by listeners like you.

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