OA14: You Be The Supreme Court, Part 1

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments episode 14, although it is a little ahead of when it would have aired had we not released that bonus episode for you guys. I hope you enjoyed it. How's it going Andrew?

0:01:30 Andrew: It's great. I was really excited about our Clinton episode and I hope folks liked it.

0:01:36 Thomas: Yeah, I hope by now it's garnered national attention, and Comey is actually citing it when he answers questions.

0:01:42 Andrew: Well, you saw, I mean, it came up and was cited in the debate Monday night, which I thought I was, I was happy that that happened.

0:01:50 Thomas: We're recording this ahead of time, so we'll just predict what happened in the debate. Yeah, now, after Trump exposed himself to the audience and zipped up his pants... That could have happened, right?

0:01:52 Andrew: Yeah. And Thomas, I thought your Your appearance on the Rachel Maddow show was just perfect, spot on.

0:02:07 Thomas: Yeah, well, you know, I had some training from you. I don't know why they wanted me instead of you. I would, I would have thought they'd just talk to the lawyer, but you know, the media is not what it used to be. They did. They're like, here's a guy who talked to a lawyer once let's interview him on the show. Oh, good times. Yeah. Let's get right over to our first segment. Listener question. Here we go.

0:02:27 Clip: He who questions training, only trains himself at asking questions. What?

0:02:35 Thomas: Anthony James asks, Most recently, a friend mentioned that because she was under 18 and and not with an adult. Her daughter wasn't allowed to use the changing rooms while shopping for a homecoming dress. But there's also businesses near schools with policies limiting the number of underage customers in at one time. With age being a protected class, isn't this illegal? Do businesses get away with it because children don't know it is illegal and adults just don't care because it doesn't affect them? I don't know about that. All right, so that's the question. I feel like I can answer part of this, but I'll let the expert do it. What do you say?

0:03:11 Andrew: Yeah, No, I think you probably could. So there are really two things to answer here. The first is, what does it mean for age to be a protected class? And we've talked about anti-discrimination legislation before. And anti-discrimination legislation sits on top of a general thought process that says, by and large, businesses are free to discriminate on the basis of the kinds of customers that they want, right? Right. You as an employer are free to discriminate and you're free to say, hey, I've hired this person because I think this person is fantastic. And I thought these other five people were terrible. So at its basic level, that's a kind of discrimination, right? That's kind of forming a judgment. But what we don't want to have happen is we don't want those judgments to be systematic and to the disadvantage of a historically discriminated against identifiable group of people.

0:04:07 Andrew: So the way in which the laws work are, they first create the protected class, then they say you have to state a prima facie case in order to bring the lawsuit, which is to say you prove that you're a member of the protected class and that you were denied a certain job opportunity or benefit or denied service or what have you. And then the burden shifts to the employer or place of business to give a justification for that denial that does not violate the statute. Statute. Um, so in the case of age, it's not just, um, you can't make a decision on the basis of age. But it is rather if you belong to a special class of people against whom historically we think that they have been denied equality of opportunity in the workplace. Um. And I am, I'm embarrassed to say.

0:05:01 Thomas: I was going to say, we have a member of this elite group of people among us.

0:05:05 Andrew: Yeah, this is yeah, right. It is.

0:05:09 Thomas: Because age is only a protected class over 40. 40 and over, right?

0:05:09 Andrew: It's like you. Yeah. Correct. So and that may vary as we learn from some of our previous discussions, like in talking about the California UNRUH Act, states may have a differing definition. But by and large, the federal definition, this comes from the Age Discrimination in Employment Act, basically said we saw people who left jobs or were fired or their businesses got shut down or whatever, and that people over 40 were having a harder time reentering the marketplace. Place. And there was sort of a built-in institutional bias against them. And so we decided from a congressional perspective to recognize that and say, hey, look, if you fail to hire somebody who's 43, I'm

0:05:13 Thomas: Okay. This is a very by state.

0:05:59 Andrew: Just picking that number.

0:06:00 Thomas: And who would hire someone that old? Oh,

0:06:02 Andrew: Yeah, no, I won't be 43 for a couple of weeks. So I'm fine. Person has a prima facie case to turn around if you would hire somebody with similar qualifications who was 25 and say, hey, this seems like this is on the basis of age. And then the employer would have to justify that kind of discrimination. So when we say age is a protected class, we don't mean that you can't treat 18-year-olds and 25 year olds differently, um, just on the basis of, of that number. Right. We certainly don't mean, for example, that a bar can't say you can't come in here if you're not 21.

0:06:02 Thomas: My God. Oh, no.

0:06:42 Thomas: Well, what about... Okay. Okay, let's, I actually have a lot I want to ask you on this. What about a bar saying nobody under 25?

0:06:44 Andrew: Uh-huh. And you might recall, we did, uh.

0:06:51 Thomas: Well, but we did, but it was a different by gender. So it's not the same. We did one where it was men 30 and up, women 25 and under, I think is what it was. But I'm asking, ignore that. So there's no protected class in question. It's just 25 and under, nah, you can't come in. We don't like people your type. We don't like people like Thomas. Actually, older than 30 is all that's allowed.

0:06:52 Andrew: Right. Right, right.

0:07:15 Andrew: Yeah. And I would say under the federal standard, right, you would be okay with, uh, we have a bar for people who are 30 and up, um, you must, in order to state a cause of action, uh, under the various statutes, you have to first show membership in the protected class, and historically, um, bar goers from ages 25 to 30, uh, are not a group that we think has been And yeah, 25

0:07:37 Thomas: We have it so hard, you have no idea. I'm going to bring a case to the Supreme Court.

0:07:42 Andrew: To 29, Big guy. Sorry about that. You do not get to qualify. So the first question is, are you part of the group? Just not, age is a shorthand, but the real question is are you a member of the group? So that handles the first part of question. And the second part is, in general, we think it is okay to have differential policies so so long as they are not in the extreme with respect to people who are under 18 years of age. This is the rights held in trust theory. We've talked about that in the past. So I think that all of those, I think the answer to the question is, it's not a case of the policy is illegal and no one's noticed it. I think it's a case that the policy is probably fine. I could imagine a situation that goes too far, but it really would be difficult to characterize under equal access and equality and employment statutes.

0:07:44 Thomas: Yeah.

0:08:37 Thomas: Okay, but now, man, maybe this will get into topic for another show territory, and that's okay. But now I really want to know how on earth it's constitutional to say, you know, I get the rights held in trust. I think we've talked about that a little bit. It. But how is it that we can just decide, especially like California either has done or is about to do, I can't remember, that drinking, nope, 21. Smoking, nope 21. It's going to be 21 in California for smoking. If it's not already, I forget. How do we just decide that? Like, no, even though you're an adult, we've established that you have all the rights that everybody gets. You don't have this one because we don't feel like giving it to you.

0:09:15 Andrew: Yeah. And again, I would say, your question is, what's the social level of outrage, right? Like, so the drinking age was relaxed in this country from 21 to 18 in the early 1970s, precisely because you had returning Vietnam veterans, right, who had served at the tail end of that, and who were 18, 19, 20, and, you know, who'd been shot at. And, you know, and all of a sudden, it just seemed kind of ridiculous that you could be drafted, obviously, there was a mandatory draft at the time, shipped overseas, forced to kill random Vietnamese, and then come back. Oh, you know, we don't think you're responsible enough to have a beer. You know that that.

0:09:54 Thomas: Yeah. Yeah, it makes no no sense. I don't get it.

0:10:02 Andrew: Right. But those you know that burden has shifted. I mean, as we've moved to an all volunteer military, that level of outrage has sort of been replaced by, a notion of it's always easier. If I can give one unrelated sidetrack here, it's the one argument that, on the Second Amendment and in general, you know we've talked about like various gun control issues. The one argument that gives me pause that I have read in gun control is you should avoid the temptation of group A wants to tell group B what they can't do, um, and that that that sort of historically, you know, that's always when you have the least amount of understanding and the most amount of overreach, um, and I I think that's a pretty good point.

I mean, it doesn't change my view on things like, you know, banning large, you know, large caliber, uh, large capacity magazines and the like, and we've talked about that, uh, but I do think there is something to, as a society, saying, um, we should be suspicious of a group of people 35 and older getting together and being like, "Well, obviously 18 year olds, you know, are not mature enough to drink alcohol." Um, and it actually

0:10:32 Thomas: Hmm. Yeah. Yeah,

0:11:11 Andrew: Gave me pause in an area that

0:11:12 Thomas: Well, my question is with the stupid smoking law, too. Why 21?

0:11:13 Andrew: Yeah or smoke, yeah.

0:11:16 Thomas: Why doesn't it, how about 50? I mean, that'll, that's good for the,

0:11:16 Andrew: Right. Yeah. No. There's there's No, look, and again, the answer to that is at some point you have to to draw a line with the law, right? Like, otherwise, you know, you run a foul. We talked about this last episode. If you were just vague and you say, "Well, only people who are really smart and mature and responsible can smoke," right. I mean, you know what, how do you, how do you protect yourself from being prosecuted under that law? Like, no, I'm sorry, you're an idiot, no way, I'm pretty sure I'm not. You know, that's a tough one.

0:11:44 Thomas: Well, maybe, yeah, maybe this is topic for another show where we build the, look, I don't even smoke. I just, it's so stupid. Like, I don't, I think it either should be illegal for everybody or, or nobody, or, you know, maybe 18, of course, cause we, the rights and trust thing, but whatever. Well, it's a future episode. We'll build our test case. We're, we'll take it all the way to the Supreme court. We've challenged this law.

0:11:51 Andrew: Right. Yeah.

0:12:09 Andrew: Yeah, the one thing I would end with is remember that when we're talking about a constitutional prohibition, we're saying we think this is something that no majority can do no matter what, right? That no matter how many people want it, unless it rises to the level of amending the Constitution, which we went through that process, that even a super majority of people could want something. If it's constitutionally prohibited, they can't get it, and so that's that's a very powerful check on democracy, and I am, it gives me a little bit of pause before I would say I want the Supreme Court to strike down this law, like even if I totally disagree with it, because I think that there's a, you, there's kind of a profound sense of of anti-democraticness that's inherent in that, and there's certainly times, like, I want the Supreme Court to strike down, like, I don't care if 99% of Alabama hates them gays, like, you know, too, too damn bad.

0:13:05 Andrew: Right. Like what it means to live in a free country.

0:12:47 Thomas: Okay. Yeah. Yeah, but we've set it up pretty tough because it's going to be voters 21 and higher 22 and higher versus voters 18 to 21, like that's, seems like a little unfair because, yeah, but okay, well, thanks for the answer to the question. I get it. I don't know. Maybe I just don't understand why people prefer that. Maybe that's the, so it's, maybe it's not necessarily like unconstitutional, but I don'T get why we all decided it was a good idea, but hey, all right, I guess we save a few lives and maybe, hmm,

0:13:07 Andrew: Yeah. Right? Yeah.

0:13:36 Andrew: There's, There's a neat piece of research. You should take a look at it. It might make a great, um, Atheistically Speaking on smoking as an aversion fad. Um, and the idea is, I, I can't remember, uh, where I saw it or who wrote the study, but but the idea is we think of positive fads, things like memes or all of a sudden everybody is dabbing or whatever, and it sweeps through the public consciousness. But the idea was they were looking at being the revulsion of smoking, just the laws, but the sort of excluding smokers as part of an aversion fad that it's now like it's cool to kind of bash on people that are doing that, which, yeah.

0:14:13 Thomas: Right, it's like popular to do so, yeah. Well, I think that's sort of what happened, sorry to reference my show again, but with the parenting thing. It's kind of a cool fad to shame parents who would leave their kids in a car for 20 seconds, even though there's no danger for it. But anyway, all right.

0:14:29 Andrew: Yeah. Yeah. And I thought that feedback loop explanation was great. If you haven't listened to Atheistically Speaking, was it 278 on parenting? You should do that. That's a fantastic show. I have qualms about plugging it here because that's a great episode. All

0:14:47 Thomas: Thank you very much. I appreciate it. Should All right, our main topic. I'm very excited. I get to be the Supreme Court, which is something I've always wanted to do. I'm glad that it's now finally official. I think you probably have to fill out some sort of paperwork, I'm guessing. But as soon as my attorney completes that, turns it in, I believe I am now the Supreme Court. So let's go. Give it to me. I'll render some decisions to you people.

0:15:41 Andrew: Apparently the Supreme Court justices decided I was not smart enough to. To have that job.

0:15:45 Thomas: I'm going to cut that out. I don't want to have anybody believing that you were too smart, you know, it's like that those you were just too good, they didn't want you outshining them. Was the thing, they're like, now we can't have this

0:15:46 Andrew: Um, there you go. Right. Well, they're only, you know, they were only about 18 of those jobs available. Now they're on 16 of those job jobs available, so, um, it's, uh it's a pretty tough competition. I was counting on that. I didn't, I was like, I got this in the bag.

0:15:59 Thomas: Did you see, I just have to, just because it's it's too good. Did you see the Onion story that was like, it showed a picture of the Supreme Court seat with like all this crap, like weeds growing on it, and seven Said kids throwing rocks at abandoned Supreme Court seat. So good.

0:16:09 Andrew: Um, yeah, right. Right. Yes. Yeah. So if you're on the Supreme Court or a clerk on the Supreme Court, this is how you would go about thinking about the case. And so we talked about the start of the process is that a petition for certiorari would be filed. And what that is, is that's a brief from a lawyer who says, I have lost my case at the, um, court of appeals for the first, second, third, fourth circuit, whatever. Uh, and, uh, I think Supreme Court that you should take this case. And the argument that you would make for why the Supreme Court should take the case is that the Supreme court needs to clarify, uh. An ambiguity in the law or resolve a split among the circuits in the law, because you may have a situation where the Third Circuit, Fourth Circuit, Seventh Circuit have all come out one way, and the Eighth Circuit, Tenth and Eleventh have all come out the other.

0:17:18 Andrew: And until that's resolved by the Supreme Court, then the states that are within the federal district courts that are in the states, that are the within the jurisdiction of those respective circuits will come out with different outcomes. And this does happen pretty frequently. You know, the law, the application of federal law can be different based on where you live. And the Supreme Court, generally, if it's a matter of importance, will step in to resolve a conflict among the circuits. Um, so that's sort of what you need to show. Uh, and, there um, are other grounds as well, but I think it's not as important to go into those right now. But Um, what you do is you file your petition for cert and you try and convince the court that this is a worthy case. And so most Supreme Court cases fall into a category where really is, no matter how partisan you are, there really are merits sort of on both sides of the case.

0:18:18 Andrew: And to try and illustrate that, I have picked a case called Trinity Lutheran Church of Columbia versus Pauley. So this is a case that involves a Missouri law. And what Missouri has is a scrap tire grant program. And so you've probably seen this, what it does is the state takes old tires, they hire a contractor to shred them, and they turn that into, uh, playground refurnishing material, right? So if you've been to a playground, like when you and I were kids, not that far apart, uh, the playgrounds tended to have a lot of dirt and sand, and nowadays if you go to a playground you will see they have this sort of like, like mulched rubber. Um, and that mulch rubber is made from recycled tires. Uh, and so the state has a program that encourages, um, parties on all sides to, uh, engage in this, um.

Recycled tire program, because it turns out the rubber playground surfaces are like, um, you know, the way they mulch it, it's, it's safer for the kids than just falling on dirt. Uh, it's better to have reused tires than to have like giant tire fires, and, you know, all sorts of obnoxious ways of of trying to burn rubber and that sort of thing, uh, or fill up landfills, or what have

0:18:51 Thomas: Okay. Yeah.

0:19:37 Andrew: You. So kind of a win-win, all the way around. And what and what Missouri does is they have their Department of Natural Resources, uh, applications. So you own a, um, a daycare center or a playground of any kind, you fill out the application, you pay the application fee, and if they approve your grant, they will come by and subsidize, or pay in entirety, the ability to resurface your playground with this recycled rubber, okay? OK,

0:19:38 Thomas: All right.

0:20:10 Andrew: The lawsuit involves Trinity Lutheran Church, which maintains a day school, and that has a playground, which focuses on preschool education and daycare centers. It's a private Christian school. Nothing wrong with that. And so they applied for a grant from the DNR, and the DNRR went through and they ranked the application on merit, and they ranked it fifth out of 44 applications. But then the DNR went by rules that were promulgated by the State Department that said religious-based organizations may be eligible for a grant if the applicant is not owned or controlled by a church, sect, or denomination of religions, and the grant would not directly aid any church, sect, or denomination.

0:20:57 Andrew: The applicant's mission and activities are secular, and the grant will be used for secular purposes rather than sectarian purposes. And so they looked at it and they said, sorry, this is run by a church, and the church is using it at a church-run daycare, so you don't get to resurface your playground.

0:21:16 Thomas: Right. So I don't get my totally reused mulched tires and that's that's and that is no good because I want my mulched tires

0:21:20 Andrew: Right. Yeah. Everybody else, if I were running, so So now what we're going to do is we look at the first thing after the church. So that's essentially the case. The church wants to be eligible for this grant. The state is defending its right to exclude the church from the grant solely on the basis that it is a church, right? Right. And so the court takes the case. We're not going to go through the cert process. We've talked about it before. You file the brief.

The other side files an opposition brief. If four of the nine justices vote to take the case, they will take the case. So now they've taken the case and now we're going to look at the first thing that's due, which is the petitioners, the people that lost below, which in this case is the church, file their brief that says this is why we think in this place the Eighth Circuit screwed up. We're going to link this in the show notes, you click on the brief, you will see the first 10 and a half pages are all introduction. It summarizes some of the stuff that I said. It says a whole bunch of other stuff you don't care about. And then we get to the argument section. And so their first argument is the DNR, that is the state of Missouri's Department of Natural Resources, categorical exclusion of religious programs from the scrap tire grant program violates the free exercise clause.

And then we go to subpart A, and that says it is religious status discrimination. And so their argument begins with our favorite case from Antonin Scalia, Employment Division versus Smith, peyote case, right? Right. That the free exercise clause prohibits government from imposing special disabilities on the basis of religious status.

0:23:04 Andrew: And their argument in this section is and they cite to Picarello. We've talked about Picarello before, but their argument is you have excluded our application simply because we're a church and that's not neutral. If the if the Constitution is to remain neutral, then you should treat it. We shouldn't get any special benefits because we're a church, but we should be treated equally. And so rank us on the merits. You ranked us on the merits fifth out of 44. And The Merits will be the number of kids that are served, that sort of thing. But you can't say it's neutral if you've said you're outright hostile to us, but because of the church. And I hear you saying yes. So tell me, tell me what you think about that. Okay.

0:23:20 Thomas: Yeah well I I think it would really depend on what they're doing. Like, I think the, maybe the sectarian purposes part is what would make more sense, because I I do get that, I feel like they should be treated neutrally if they are just, oh, it's it's a playground, we're We're trying to do something that's going to benefit playgrounds for whatever reason, for safer for the kids or whatever. And so we want to treat any place where this might be needed as kind of neutral. I get that. But I could also see it going the other way, depending on, I don't know, maybe what they're doing there. And if it's too, if it's a, I dunno, I guess I'm, I'm not sure. I'm undecided. I may need more info, but I could, I could see it going either way.

0:24:28 Andrew: Let me see if I can give a little bit more from this argument, whether it moves you at all. So petitioners cite to a case involving prayer to open a town meeting. It's a case called Town of Greece. And they actually cite to the dissent. So this is an appeal to the liberal wing of the court. And they say four members of this court recently underscored the importance of the government maintaining religious neutrality. They explained that, quote, a Christian, a Jew, a Muslim and so forth, each stands in the same relationship with her country, with her state and local communities and with every level of body and government so that when each person seeks the benefit of citizenship, she does so not as an adherent to one or another religion, but simply as an American. Such religious status discrimination eschews a course of neutrality in favor of rank hostility to religion. So does that move the needle for you at all?

0:24:33 Thomas: Right.

0:25:22 Andrew: Does this feel like this is hostility-to-religion as opposed to neutrality towards religion?

0:25:28 Thomas: I mean, it kind of does. Yeah. Yeah, I mean, maybe I hope I'm not missing something obvious, but it kind of does feel like that, because it's like, yeah, they, I were ranked by the merit process at whatever they decided the criteria was at fifth, and then then someone else came along and said, oh, but their church, get them. Off. I don't know, I could see that, I like that argument,

0:25:44 Andrew: Yep. Okay. So that takes us through 1A, we go to page 20, and now we're at 1B. And you'll notice I've condensed down nine pages of lawyer argument into a couple of paragraphs.

0:25:53 Thomas: I'll thank you for that,

0:25:56 Andrew: Yeah. So now they've said the DNR's categorical exclusion of religious organizations is not neutral or generally applicable. And here they are citing the city of Hialeah versus Lukumi decision. We talked about this on a Scalia episode as well. This was the city of Hialeah prohibited the sacrificing of live animals as a way of targeting the Santeria religion. And it was one of the very few cases post Smith that where the Supreme Court found a violation of the free exercise clause. And that's because it was in the preamble. Like, you know, the legislators sort of got together and said, you whereas we find Santeria gross and icky, therefore, we don't

0:25:56 Thomas: Yeah. Right, right, right. They

0:26:49 Andrew: Want you to be sacrificing chickens. Right. And so their argument here in this section is is much more like City of Hialeah. Right. It is much More targeting a specific religion than it is like Smith saying, because Smith, remember, said it was OK to deny unemployment benefits to people. Peyote eaters who were using peyotes in their off time as part of their Native American spiritualistic practices, because the law was prohibiting the use of peyote as a controlled class one substance. And, you know, sorry, their religious beliefs got in the way, but we're really prohibiting drugs. We're prohibiting the peyote, we're not targeting a specific religion. And how does this argument strike you?

0:26:49 Thomas: Tip their hand. Boy,

0:27:40 Andrew: That as between, if Smith says a neutral law prohibits a practice and then just doesn't give you a special exception if you're a religion, whereas Hialeah says you can't have something that is targeting a specific religion, does the DNR regulation strike you as more like city of Hialeah or more like Smith?

0:28:02 Thomas: Okay, the policy they made to throw out an application if it's a church, I Would Say that more specifically targets religion than a neutral thing that, yeah, no, that seems pretty obvious to me. Maybe I, again, now I'm afraid that I'm gonna, I'm afraid I'm walking into your trap, Andrew Torrez. I don't know why. Maybe I'm being too paranoid today. But I'm always afraid that there's a nice little loop of rope on the ground that you've left for me. And I'm like, well, yeah, it seems as though I should just put my foot right in there. But maybe I'm being too paranoid. So I will stop being paranoid and say, yeah. This seems like something that specifically targets religion to me. Because it doesn't make any sense. They're just doing it for the sake of doing it. Because they don't want it to be a religious... They don't want to do it for a church, right?

0:28:24 Andrew: Well, yeah.

0:28:50 Andrew: So, yeah, and what I am trying to illustrate is by the time a case gets to the Supreme Court level, even for cases that out nine to nothing, and even for a lot of cases where I feel very, very strongly that one side is correct and the the other isn't, that you can almost always make an argument for both sides, right? That these tend to be, you know, phrase that somebody noted, I tend to use a lot on the show, but they tend to Be areas over which reasonable people can disagree.

0:29:23 Thomas: Okay.

0:29:23 Andrew: And so, yeah, so I'm stacking the deck a little bit here, because we are reading, we are working through the petitioner's brief. And so far, the defense, the defendants have not said anything, right. Right. So if you get to the end of the petitioner's brief and you're not pretty sold on their case, they're probably in trouble. Right.

0:29:44 Thomas: Okay.

0:29:44 Andrew: Right, because they're just going up against nothing. And if you can't.

0:29:45 Thomas: Yeah. Yeah, yeah. That's a good point, so I, I didn't, I didn't realize that, so I think I would have been less wary. Okay.

0:29:49 Andrew: Yeah. Well, no, I mean, I think you picked up on what I'm trying to do. So that's that's good. OK, so that ends argument one. And this so that's the argument that says this violates the First Amendment's free exercise clause. And the reason it violates It's the First Amendment's free exercise clause because you're targeting a church and it's not a law of neutral applicability. The next section begins at page 22 and is a similar set of arguments based on a similar set of facts, but argues that it violates the Equal Protection Clause of the 14th Amendment. And the argument is that DNR's religious exclusion employs a suspect classification that violates the Equals Protection Claws. And here I'm glad we actually answered an equal protection case in the listener questions, because, again, we are no there's now a thread, a common thread through and just sort of happened by happenstance. So, Thomas, when you.

0:29:56 Thomas: Yeah.

0:30:45 Thomas: Right, it was No, it was engineered to perfection, just like we drew it up.

0:30:50 Andrew: So when we look at equal protection cases generally, and here the Supreme Court is citing to a case called City of Cleburne versus Cleburne Living Center, equal protection clause directs that all persons who are similarly situated should be treated alike. And then when the government treats similarly situated entities differently solely because of one particular status, it has to satisfy what we call strict scrutiny, which is to say that the law has to be narrowly tailored to accomplish a particular objective and no broader than it needs to be in order to accomplish that objective. So it's a very, very high standard to clear.

0:31:28 Andrew: And so under equal protection litigation, the court has treated religious classifications as, quote, presumptively invidious. And at the heart of that is the notion that the government must treat citizens as individuals, not as simply components of a racial, religious, sexual or natural or national class. And here, the argument that they're not quite making, because I think it would be implicit to any member of the Supreme Court that's listening is that that's reading this or listening to our podcast, which I

0:31:27 Thomas: Okay. I

0:31:58 Andrew: Hope I hope we have. I hope We have a good, solid seven justice listenership.

0:31:58 Thomas: Was gonna say, I was Going to say the odds are a little less since there's only eight instead of nine, but I, I still think we probably by, just, it's just probability. There's probably one.

0:32:07 Andrew: Right. Yeah, no, of course. I have a lot of good authority that Ruth Bader Ginsburg has us queued up on her iPod. But so the argument that they're not quite making, but that is implicit in this is, look, if the whenever you have a classification of a group of people, particularly one that historically has has resulted in discrimination, then that should be suspect. So if the Missouri DNR said, we want you to evaluate all of the applications, but if it's turned in by a black person, throw it away, that's super clear. We would not have any debate over this at all. And the reason is because that law would not survive any kind of strict scrutiny because we can't, we can possibly come up with a valid reason for not wanting African-American owned businesses that, you know, African American owned playgrounds to be able to resurface their playgrounds. Right. And so their argument is religious classification is on a par with or race. It is something that should trigger strict scrutiny. So how does that argument strike?

0:32:11 Thomas: Yeah. Okay. Yeah, right.

0:33:21 Thomas: How is it much different than the first one? I guess it's right.

0:33:23 Andrew: Well, because the first argument is a claim under the First Amendment. The first argument says they're being deprived of their rights to exercise their religion because the way in which they could get around this would be, don't be a church while you're running this daycare.

0:33:37 Thomas: Got it. Got it.

0:33:38 Andrew: And so when you force them to choose between exercising their religion and complying with the law, you're violating their free exercise. This says you're treating, I did mention, and we lawyers tend to be verbose and overlap in arguments. It does overlap on the facts, but it seeks a different kind of grounding for the argument, namely the equal protection clause as opposed to the first amendment.

0:33:48 Thomas: Okay, okay.

0:34:08 Thomas: So it kind of feels the same to me because I'm not a brilliant legal scholar like you. It kind of feel like both things are like, well, we're religious, get over it. But so it's just that it's two slightly different ways that it is violating the, their, or kind of infringing on their religion. Man, I wouldn't be, they seem so similar to me, I will be honest, I feel like I'm just kind of overlapping them in my brain. Maybe I don t have have a good handle on why there's so much, why they're different really, but it just has to do with which amendment is, is providing the remedy or,

0:34:43 Andrew: Yeah. And again, because equal protection is more aimed as includes classifications of things that can't change. Right. Like that was the purpose of the analogy to racial or gender discrimination. Right? Obviously, you're free to stop a church or practicing a particular religion, but we think that conditioning, having access to your legal rights on not being a Church, is another particular kind of harm. It's a First Amendment harm. So that's why it overlaps. Did that make sense?

0:34:54 Thomas: No, I don't get it. I honestly Don't, I can't, I don't get the difference in, I think it's just because I don't have a body of knowledge like you do of here are cases that sound like First Amendment cases or are First Amendment causes. Here are cases there are 14th Amendment cases. I. I don't, I don't have those two different things in my brain. So for me, it just both of it sounds like it's my religion and you're discriminating against it in some way. You know, like I think that's why it doesn't, I mean, I can just take it from you for granted that they are different. I just, I can't think of the the thing that makes these two different challenges or two different arguments all that different. You know.

0:35:19 Andrew: No.

0:35:57 Andrew: Okay.

0:35:57 Thomas: It might be that the case of non-lawyer, lawyer translation error. Or,

0:36:02 Andrew: Yeah, no, look, I find this really, really interesting. So, mean, I asked for your take on it. And so I find that interesting. It's something that I'm going to think about as we move on to segment two. Too.

0:36:02 Thomas: Hmm.

0:36:16 Thomas: No, it could. Hopefully it's just me. Maybe everybody is like you idiot. I get it. It's perfectly okay. I mean, I could just take, I think it's, it's tough for me because it would be easy for me to just say, yeah, I get It. Okay. That's 14th amendment. Fine. But I'm feeling like I, I, uh, I'm just very straightforward. I don't like pretending I get something when I don t. And I, just honestly don't think I have the, the sort of the mental structures that you have that tell you as a trained lawyer, here's this specific way that this amendment is protecting them here, but it's slightly different than this amendment over here. I think I get that you're saying that and I take your word for it because you're the expert, but I feel like, you know, like I don't feel like I really get it. You know, I if someone asked me, can you just explain without Andrew holding your hand, what's the difference between this 14th amendment challenge and this first amendment challenge?

0:36:20 Andrew: No, no, no. Off

0:37:08 Thomas: I mean, I suppose I would try to say, maybe this will help. You can tell me where I'm not getting it or maybe I am getting it. I don't know. I would try to Say, okay, based on what you've told me, the First Amendment challenge has to do with not having their rights infringed on. Now, see, I feel like I'm going to say the same thing for both. I Don't get it.

0:37:28 Andrew: Okay, well, well good. I mean, that, again, part of what we're trying to do here is evaluate the appeal of the arguments. And, and so I think what you've said is it feels like there is merit to the argument that says you are treating religious people differently on the basis of, solely on the basis that they are religious. And from your perspective, it doesn't matter whether that's characterized as a First Amendment free exercise violation under Hialeah or whether that is characterized as an equal protection violation under City of Cleburne.

0:37:51 Thomas: Right.

0:38:02 Thomas: Well, yeah, I just mean in my mind. Don't don't get me wrong. I'm I'm just, I think it very much does. I just, I don't think I fully got it.

0:38:06 Andrew: Yeah. No, no, no. No, I did. Right. Understood. But but from from an argument perspective, that's how you evaluate that. Good. OK. One area. So we're actually going to skip over a part of the brief because of that, because one area in which it does matter how matters whether it's a First Amendment claim or a 14th Amendment claim in terms of how you justify the strict scrutiny.

0:38:13 Thomas: Okay. Sure. Okay.

0:38:32 Andrew: And so, right,

0:38:33 Thomas: So there's, it has consequences later on depending on which one we went with.

0:38:36 Andrew: So, Section three of the argument we're going to skip because basically what it says is you cannot meet strict scrutiny if you say religion is a protected class. And the reason is because there is no compelling state interest in categorically excluding religious people from having recycled tire in their playgrounds, right? So let me give you an example of something that would pass strict scrutiny. You have, this is modified from an actual employment case, but you have a nuclear waste processing facility And the room, the disposal room, subjects people, even when they wear proper safety and hazard equipment, to a certain level of radiation, right? And the company determines that that radiation is mostly safe for low level of exposure, but is particularly not safe for pregnant women, right.

0:38:36 Thomas: Okay. Okay.

0:39:39 Thomas: Pregnant women? Aha. All

0:39:41 Andrew: And so They say we are going to exclude all women from being able to run the, we exclude all childbearing women of childbearring age from being able to take the job in the disposal room because we don't want to, you know, permanently damage their, you know, reproductive organs, that sort of thing.

0:39:41 Thomas: Right. I like it. Okay.

0:40:00 Thomas: Right. And this is okay because even though it is technically discriminatory, it's because there's a compelling state interest to not have a bunch of malformed children or something like that, right? Okay.

0:40:12 Andrew: Exactly, exactly right. There you go. Since I'm modifying it from a case I'm thinking about, you have to say it's a state run facility and there's a regular, you know, let's make it state action so that it's, we're not just talking about an individual employer, which was the case in the original case. But but yeah, so you could imagine satisfying strict scrutiny for excluding women under the age of 45 from a job. Now, you know, you could even layer on facts. Suppose the because it's so dangerous, the the waste disposal job pays more. Right. And now you have a woman who's 23 who says, I really, really want to work in the waste disposable room.

I don't think I'm going to have kids. Um, uh, and the state says, you know what, like, regardless of whether you think that right now or not, um, we're not going to expose you to, uh. Radiation that could sterilize you. Um, And it would be again, the, the thread that runs through, I'm not suggesting that's a slam dunk the other way, but I am suggesting that that would certainly be a defensible argument in court to say, we have set up this criterion. We admit it's discriminating against a protected class. It's discriminating against a certain subgroup of women, but it is the least restrictive means necessary. There's nothing there's nothing else we can do to make sure that women are not accidentally sterilized on the job. So Section 3 basically applies that argument to the question and says there's Nothing like that in this case. There's no reason to

0:40:13 Thomas: Okay. Okay. Sure. Okay Okay. Yeah,

0:41:36 Andrew: Stop religious playgrounds from having rubberized.

0:41:43 Thomas: I certainly can't think of anything.

0:41:44 Andrew: Yeah. So now we go on to number four. This begins at page 35. And argument number 4 is Locke v. Davey does not sanction religious status discrimination. And already this should probably be sending off a little bit of an alarm bell. That sounds pretty defensive, doesn't it?

0:42:02 Thomas: Yeah, I don't even know what that means.

0:42:04 Andrew: Right. Yeah. So as it turns out, Locke v. Davey is another Supreme Court case. It was a 7-2 decision. So the the hardest core right-wing uh of the court dissented uh Rehnquist wrote the opinion so um he was pretty far right uh and uh you know Anthony Kennedy centrist Sandra Day O'Connor was still on the court at the time. So what Locke v. Davey did was it upheld a Washington state scholarship program that so state run scholarship program that excluded students who were applying for a degree in devotional theology. OK. And so essentially what Washington said was it was at $1,125 per year.

0:42:49 Andrew: State legislature available for qualified students who spent half the time or more in an eligible post-secondary institution in the state of Washington and excluded the study in theology. And that was because the Washington state constitution had a provision that said no public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction. OK. Now, whether that would apply under a standard First Amendment analysis is an unsettled question. Right. So in other words, the yeah, the Washington State constitution goes a little further than just separation of church and state. And it says you may not spend public money on any religious worship, exercise, or instruction. You can certainly make the same argument that the First Amendment's Establishment Clause extends to prohibit the same kind of activity, but this was intended to remove any ambiguity about it. And so the Supreme Court said that by a seven to two vote, yeah, that the state constitution, perfectly valid, says you can't spend religious money.

You can't, you can't spend public money on religious worship, exercise, or instruction. They're giving away scholarships. They may be discriminating against people who are pursuing devotional theology, theology, uh, but if we allowed that, that would be spending money directly on promoting worship, uh, and so, uh, so they upheld that case. So now what Trinity Lutheran has to do is they have to distinguish this case, and they have to say, yes,

0:43:26 Thomas: No one's challenged it under that yet or something okay yeah

0:44:25 Andrew: Uh we know that the Supreme Court has previously said, um, you could, essentially make rational, non-violative discrimination on the basis of religious belief because of this notion

0:44:41 Thomas: So that's what you meant when they're being defensive. They're saying, we know that this case kind of sounds like it would apply to ours and it's going in the wrong direction from our perspective, but then they said, here's why it doesn't apply or something. Is that what it is?

0:44:43 Andrew: Right.

0:44:54 Andrew: And so here's what they say for why it doesn't apply. Argument A on 36 says, "Trinity Lutheran does not seek funding for an essentially religious endeavor," right? We're not using, we're not going to take the scholarship money and put it into to bibles, we're going to put it into, uh, we're going to take this reclamation money and put it into recycled rubber in our parks.

0:44:57 Thomas: Okay. Uh-huh. Yeah. Yeah, they're not using that for communion or something like that.

0:45:13 Andrew: Okay. Right, Yeah, um, section B, uh, this begins at page 41, uh, the exclusion exhibits hostility to religion. So in Lock, uh, they said that the disfavor of religion was, uh, mild, right? And here they're saying that, well, they, they were comparing it to the Lukumi.

0:45:21 Thomas: Mm-hmm.

0:45:34 Thomas: Someone tasted it and was like, yeah, that one was spicy.

0:45:36 Andrew: Right. Well, the taste is funny because again, they're comparing it and distinguishing it from the sacrificing chickens case. So they said, yeah,

0:45:45 Thomas: No, know.

0:45:45 Andrew: They said this was far milder than that kind of hostility. So here they say, yeah, that was supposed to be mild form of hostility religion. This is extra spicy. They argue in the brief, this is the end of 41, one, "Churches like Trinity Lutheran are not constitutional lepers." I like that phrase. "Yet the only way the Learning Center," which is the name of their school, "would receive a scrap tire grant would be for Trinity Lutherans to disavow its nature as a church or for the preschool to separate from the church. Hence, the DNR," that's the state of Missouri, "unconstitutionally requires applicants to, quote, choose between their religious beliefs and receiving a government benefit."

0:45:47 Thomas: Yeah. All right.

0:46:23 Thomas: I

0:46:23 Andrew: And then argument C, this begins end of page 42, beginning of page 43. "The Missouri provision that mirrors the Washington provision has a credible connection to religious bigotry exhibited by the Blaine Amendment." And here they go through the history of what were called Blaine Amendments, after James G. Blaine, that were passed in various states in the end of the 19th century that were predicated on overt anti-Catholic bigotry, okay? And so there's an argument, I'm not going to go into it, it's a page and a half here that says this provision that prohibits aid to churches was passed at a time in which people were passing these kinds of laws not out of concern for any great, you know, secular purpose or, you know, noble cause, but rather because people hated Catholics and that should make it invalid. Okay. So now we finished the brief. How do you feel about the brief?

0:47:23 Thomas: Don't know. I'm pretty convinced. I mean, again, you said that it should be convincing since it, since it's, it's kind of going up against nothing, but I'm pretty convinced. I feel like the last one is a little weird. I don't, I don't know that it, it was as strong as the other ones, but I don't know. I feel like one and two are pretty good. I wouldn't be, I personally, I, I don't, I don't feel like it would be that outrageous to get rid of the policy that doesn't allow this to happen to churches. I don't know. I don't feel like they're, I don't think it's giving any special advantage to churches or something that we wouldn't want the state to do. But, you know, maybe I'm stepping into that rope that's going to trap me upside down.

0:47:27 Andrew: Yeah.

0:48:03 Andrew: Awesome. Well, that's where I hoped you would wind up. And I say that as, you know, I look, we are similar in, you know, our religious beliefs and our evaluation and our political beliefs. But I think that, you know, it sort of goes to show when these cases tend to arrive at the Supreme Court level that you can make a reasonable and persuasive case for the other side. In episode two, episode 15, which will be part two of this, uh, we're going to go through the state's brief and see how it sticks up, uh. And see how these arguments are responding. And this is again, exactly what the Supreme Court would be doing. They would read this first. Uh, the other side gets to read this and then they have an additional 30 days to file their response brief.

0:48:51 Andrew: Um, their, their brief in opposition. And so, um, the advantage of, of having one at the previous level is you, you get to go in the middle, the appellant goes first and gets a short reply brief. So they're bookended and, and, but you get To go in the middle and you get respond to the way that they've framed the case. Um, and I think that will be really, really interesting to see how you feel about their response.

0:49:15 Thomas: Okay.

0:49:15 Andrew: Um. And we'll go through that.

0:49:16 Thomas: And this is a pending case, right?

0:49:18 Andrew: This is a pending case.

0:49:18 Thomas: So we may some, okay.

0:49:20 Andrew: I will tell you the last entry. So the brief that we just read. So cert was granted in January of this year. There was a motion to extend time. And there were a whole bunch of amicus briefs, which we'll talk about in either the next episode or possibly in part three if it goes to part three. But this brief was filed that we just went through, filed on April 14th, 2016. The next brief was the brief by the state of Missouri, which was filed on June 28th. And then just a little over a month ago, on August 12th, the Trinity Lutheran folks filed their reply brief. So, all of this has been briefed. It is pending.

0:50:06 Andrew: I do not know if oral argument has been, in fact, oral argument has not yet been calendared. So, has not been any argument before the Supreme Court. Justices and their clerks get some time to read the briefs before they go into oral argument so that they're well prepared and that that they can ask probing questions, many of which are totally unrelated to what go on in the briefs. So we'll get to track along and see what the Supreme Court does. When this case goes to oral arguments, we'll follow it then and then we'll see what we can predict.

0:50:34 Thomas: Yeah. But first we're going to find out the state's response, right, next next episode, and we'll see where we are from there.

0:50:41 Andrew: Yes. Yes, yeah. So next episode, We will do state's response. Third episode, I think this will third episode, we'll do the church's reply, and we'll talk about the amicus briefs and we're talk about all of the other things that go into the soup of considering this case. All.

0:51:00 Clip: Thank you, Dr. Hibbert. I rest my case. You rest your case? What? Oh, no. I thought that was just a figure of speech. Case closed.

0:51:09 Thomas: So quickly, closed arguments. I love closed. Case closed. Wyoming judge faces removal for refusal to allow same-sex marriages.

0:51:20 Andrew: So this involves a Wyoming judge named Ruth Neely, who I will point out, this is not uncommon, is not a lawyer. Lawyer. You can be a magistrate. Judge.

0:51:35 Thomas: There's still hope for me.

0:51:36 Andrew: You know, on these sort of, administrative judicial positions and not be a lawyer. I don't know how you get appointed or whether that's an application process in Wyoming. But she is a magistrate. One of the things that magistrate judges do is grant marriage licenses. And she is a committed, well, here's her statement. Homosexuality is a named sin in the Bible, as are drunkenness, thievery, lying, and the like. I can no more officiate at a same-sex wedding then I can buy beer for the alcoholic. So she has refused to, um, right.

0:52:18 Thomas: Well. Even. Then is a false argument because it would be allow beer for anybody would be what you would say, not buy beer. For an alcoholic, that's stupid.

0:52:26 Andrew: Um, uh, I certainly agree with that. Um. I, it, I it. Brought this closed arguments case up because, uh, the organization that is defending Judge Ruth Neely is actually the exact same organization, organization that wrote the brief that we just went through, the Alliance Defending Freedom, which is a religious advocacy law firm that takes on conservative Christian cases. It's based out of Arizona. So they represented the Trinity Lutheran case.

0:52:49 Thomas: Interesting. And.

0:52:59 Thomas: That. Rope. Tightens.

0:53:01 Andrew: They are also

0:53:01 Thomas: Around my ankle. And. I'm swinging, dangling in the tree, what?

0:53:04 Andrew: Representing Representing Judge Neely here, is very, very clear I mean, there's sort of two things that are operative here. And the first is, you know, like the Kim Davis case, this is a case of refusing to do your job. But this is also judges, magistrate judges, have separate duties that go above and beyond just the natural duties that you might have as a clerk in a court. You have specific ethics rules and a code of conduct. And one of them is that you have to follow the law. You have to avoid the appearance of impropriety and you have to perform your duties fairly without bias or prejudice.

0:53:41 Thomas: You have to do your job? I don't, no way.

0:53:42 Andrew: Yeah. Well, and, and importantly, right, you cannot have, this is, this is what the commission that suspended her found. It said that the judges do not enjoy the same freedom to proselytize their religious beliefs as do ordinary citizens, right? So.

0:54:00 Thomas: Good.

0:54:00 Andrew: Uh. And and that's exactly right. Like, you, when you are in a public office and you are representing the public trust, you have to be, you have to put on, that's why I quoted those words about the appearance of impropriety, right? We cannot. Mandate what goes on in your head, but we can't allow you to say publicly, "Hi, I'm going to treat gay people differently than I treat straight people."

0:54:00 Thomas: Yeah. Right. Yeah.

0:54:23 Andrew: So this is, in my view, a closed argument, notwithstanding her representation by the Alliance Defending Freedom. I don't think they have any sort of case here. You're a judge in light of Obergefell. You have to solemnize anyone who who was appropriately before you with a legal marriage. And if you're not comfortable doing that, get a different job case closed.

0:54:49 Thomas: All right, case closed. All, well, that's it for opening arguments today. Thank you again so much, Andrew, for all you do in taking, dragging me through this complicated stuff I sometimes can't get a grip on, but uh, but I, I enjoy it nonetheless. Yeah, we've got so many people to thank for pledging over patreon.com/law, so easy to remember, uh, it's also the reason why we're not only an hour long show now, but apparently even more so. Thank you for your kind support, and we're very, very happy to return the favor with some extra legal content, so we gotta thank you, thank you, gotta gargle them all. Phil Moore, John Turbeck, Nancy Jepson, thank you, Donovan, Andrew Bond, Matt Brown, Daniel Segal, Lane H thank you Victoria MacNair Matt Rapture Squirrel uh Kelvin Brostek-Van Manen away right

0:55:46 Andrew: Thank you to Xavier Garza to Dennis to Phil McGroin to I'm guessing that's probably a pseudonym to Kyle Humfeld Robert Rowe Gray Marshall Eliza Lamb Ty Wieland Doug McGarvey and Shelly Fromholtz thank you so much

0:56:02 Thomas: And of course we've gotta thank our all-of-fame patrons our all time greats inciting incident podcast jeff s kaylee riser michael hunter ash slash uh

0:56:11 Andrew: Thank you to ProPanic, to Patrick Fussell, to Amanda Lipnack, Desecrator, Jim Grove, Steve Sigmund, Dale, Dave Nichols of the Positively doubtful podcast Eli Bosnick and danny rosari thank you all so much yeah

0:56:24 Thomas: Can't thank you enough again, patreon.com/law. We've got Andrew's been doing bonus content for you, uh, and and it's it's seriously the least we can do to thank you for your support. All All righty, we'll see you guys next time.

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