OA17: You Be The Supreme Court, Part 2

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. This is episode 17. How you doing, Andrew Torrez, legal expert?

0:01:24 Andrew: I am substantially similar to how I was doing in episode 50. How are you?

0:01:30 Thomas: Why would that be? I have no idea. I am doing great. Hey, let's just talk about, really, really quickly, before we get going, Patreon. And. We just wanted to say thank you so much that we're at close to our $500 goal, which will be, of course, lawed awful movies, reviewing a movie and poking fun at it and making fun of the legal aspects as well as the just terrible aspects of it, and you can guess who's going to cover which thing there.

We wanted to thank you for getting us close to that. Also, I want to make sure we're keeping it fresh here on the intro segment and all that, so we want to change up the quotes that we play in our intro segment that everybody is probably skipping by now, but if you're not, uh, we're thinking, maybe I don't know, episode 20, or maybe, to make it nice and round, 21 would be like when we'd start the new one. So, as part of that, I believe a patron bonus was that you could pitch in quotes that you like. So if you have any quotes from any movies, shows, anything, preferably Simpsons related, maybe Futurama related, we'll see that you want to to put in the intro. We are all ears for that. Kind of fun little thing. And I love hearing it every time. I actually listen to it every time because I just love the Simpsons quotes so much.

0:02:49 Andrew: So do I. I will say if you send us the you can't handle the truth quote then that will be automatically deleted, unplayed.

0:02:56 Thomas: We will block you from our

0:02:57 Andrew: Don't everything else.

0:02:57 Thomas: Show. I know that that might not seem like it's compatible with [unclear], but we'll figure it out. So All Right, with That said, let's get over to our listener question for the day.

0:03:12 Clip: He who questions training, only trains himself at asking questions. What?

0:03:20 Thomas: David in Kentucky asks, on the issue of defense, of the defense, not defense, I read defense spending, which is a different thing. But on the issue of the defense spending money to get to zero, and this was, of course, something in, actually, atheistically speaking, was a reason that sometimes it can be, we'll get into it, but basically being put in a position where the best the defense can do is essentially get to 0. And of course that's not good because you have to spend a lot on legal fees to get to zero. So David's question is related to that. And he's asking, can't the defense countersue for the cost of their legal fees?

0:04:02 Andrew: Yeah, and the answer there is no, and and the reason, and the answer is no, is because we have the American system of law is distinct from the European model. In the European model, This is not true in every country. It's just called that. So if you're a European listener and, you know, would like to correct us, send the email to open arguments at Gmail dot com. But what we call what what U.S. based lawyers call the European Model is a loser pays system. And that is whoever loses in a civil lawsuit is responsible not only for the damages, but for all of the court costs and both sides' attorney's fees.

In the United States, we have an adversarial system that is pay your own way. The winner and the loser are responsible for their own court costs and their own attorney's fees unless there is a specific law to the contrary. And there are some that do fall into that category. So, for example, one area where we have, and it's called fee shifting for obvious reasons, one area where we have fee shifting is in the Fair Labor Standards Act. So you might see this. There are lawyers who will advertise and hour claims. There's a famous one out here, ex client of mine, actually, that advertises during NFL NFL football games, uh,

0:04:04 Thomas: Oh, my

0:05:33 Andrew: And basically says, are you working overtime and not getting paid? If so, you give us a call and we'll get you money. And it's

0:05:39 Thomas: Gosh. You need to watch Better Call Saul. It's so good. It is so good and there's so much to talk about in it.

0:05:45 Andrew: On my list. It's on my

0:05:46 Thomas: Okay. Okay. Listener for question from Thomas S. in California. When are you going to watch Better call Saul. Anyway, good.

0:05:46 Andrew: List and, uh yeah, soon, Soon. So, so the answer is, one uh of the reasons that this is a growth areas because the FLSA specifically authorizes that if the plaintiff is awarded even $1 at trial, if they prevail, they are entitled to their attorney's fees. And so, you previous episode in which we were discussing, one of the drawbacks of the American-style rule is it creates a system where in ordinary cases, right, non-FLSA cases, cases like a lawsuit for defamation, you can't sue the other side. You can't countersue the other side for your attorney's fees. You cannot countersue them for defamation on their own because anything you say in a court proceeding is privileged.

0:06:41 Andrew: Right. So so you're really left with when you're sued for defamation, you are just fighting to get back to zero is sort of how we put it. And and that's the case. And that's a tremendous disincentive. It really is. But what I want to speak to here is my my personal experience, the disincentered of going to a loser pays rule. Happens in these FLSA cases. What it does is it greatly increases the incentive for a party to file an FLSA case seeking a relatively small amount of damages, right? Say $20,000 in damages, even if there's very little merit to the case, because the more money you you spend as the defendant fighting the case, the more the plaintiff is able to come back to you and be like, well, you know, we're continuing to fight in court.

0:07:33 Andrew: And now we've racked up $30,000 in legal fees to go alongside our $20,000 claim. And even if you think you're going to win, you have to admit that there's some chance, A, we are going to have to go to trial. Well, it's going to cost to go to trial. And if we get even a dollar, now we're looking at, you know, $100,000 in damages being awarded on what was initially a $20,000 claim. And so that leverage of having attorney's fees hanging over the proceeding is, you now, a tremendously powerful club to give to the plaintiff because it makes it very, very difficult for the sides to come to a reasonable valuation of the case at an early stage.

0:08:21 Andrew: And the more you spend fighting it, you know, the harder it becomes to settle later on, you know, once the other side has spent 30 or 40 or $50,000. So, you know, I say that just to say, as is sometimes typical of me, that there are no easy answers answers in the law. And certainly, you know, whatever rule you pick to govern, you know, the majority of circumstances is going to produce outcomes that that seem counterintuitive. So straightforward answer, unless authorized by statute or certain rare cases not worth going into right now. You cannot sue for your attorney's fees just because you have been the subject of a lawsuit, uh, that kind of sucks. Uh, but yeah, well, there's, uh.

0:08:39 Thomas: Yeah. Wow.

0:09:06 Thomas: I really didn't know that. I feel stupid right now. I had no idea. But I'm only as stupid as David in Kentucky. So, yeah.

0:09:15 Andrew: I, I don't, there are plenty of things. I mean, one of the, one of the themes that we've, you know, echoed here is that a lot of the law is intuitive, but a lot of it is counterintuitive sometimes. And, uh and that may be something that's

0:09:25 Thomas: Because I would have thought you could just sue anyone at any time for anything. I kind of thought that was the baseline we were working with, but I suppose not. What about if we could do it so that there's some standard like penalty or something where you could appeal to be like, okay, this lawsuit was crap. Can I get awarded a standard penalty that they would have to pay me and not allow the opportunity for it to get too exorbitant, like you were saying, with $100,000 for, you I don't know. What about something like that? Does that have disadvantages that, hmm,

0:09:26 Andrew: Yeah. Nope.

0:09:54 Andrew: Yeah. And yeah. Well, so he, and here's how I would evaluate that. So right now, that threshold is very, very, very, very high. Okay. So the court can always award you sanctions for the other side's misconduct. And that misconduct can include filing non-meritorious claims. Okay? But in practice, what is defined as a non- meritorious claim, the provision in the federal rules is called rule 11. And most states have a companion section in their rules of civil procedure. But it is that the argument was based on, you pass Rule 11 if your argument is based on either the law, a reasonable interpretation of the law or a good faith argument to amend or change the law. Okay.

0:10:47 Andrew: And the reason that you do that is because, I mean, so obviously that covers pretty much everything. And, and the reason that you that is, because, you know, we've talked about some of these landmark constitutional cases, right, the Gideon versus Wainwright decision, well, at the time that that was brought in the Supreme Court, arguing that you ought to have the right to a state funded lawyer in criminal proceedings that were brought against you. There was a Supreme Court decision that was exactly the opposite, right? That said that had brought come up same facts and said no. And the argument being made in that case was, yeah, but the Supreme Court got that wrong. Like it really is important for individual criminal defendants to have a lawyer and not just, you know, the ostensible right to pay for one because, you Know, that they're they're getting railroaded

0:10:47 Thomas: The disproportionate

0:11:35 Andrew: And this is their basic, yeah, their, their basic liberty. And, um, and the Supreme court agreed and reversed itself, uh, and overturned the prior holding. So, you know, we want to encourage, um, we wanna encourage creative lawyering in situations that vindicates people's rights. We don't wanna encourage, encourage creative lawyering.

0:11:36 Thomas: Effect that's happening? Yeah.

0:11:51 Thomas: Well, but sorry, I mean, maybe I missed where You did, but I was was talking about in the case of like defamation or something where you're just suing another person

0:11:52 Andrew: Yeah. Go ahead. Yeah, right. Right. But, but so suppose, I mean, again, how do you craft a rule That says that prevents you from saying like, well, look, I know the standard for public figures is X, but I'm arguing on a good faith basis that the standard für public figure should be lowered. And it's it's really, really hard. So, you currently our system says we really don't want to punish people for bringing lawsuits and for for even, you know, quote, frivolous lawsuits, because we don't want to deter that. We want to make sure that if you have a position to argue, you feel free to argue that in court.

There are real world costs to that. I don't know that I have a great answer. I can tell you, I've only gotten sanctions once against opposing counsel in any matter that I've litigated in 20 years. And that involved a case where they were, uh, had deliberately, uh... I should be clear about how I describe this. Someone on the other side had taken a document and had photocopied my client's signature, razored it out, taped it over a document, and photoc copied it again to make it look like my client had signed the document when he hadn't.

0:12:10 Thomas: Yeah. Oh.

0:13:01 Thomas: Man.

0:13:08 Andrew: And we had to go through the trouble of proving that to a judge. And when we did, you know, the judge awarded us sanctions. But the sanctions we got were the cost necessary to, you know, hire a handwriting expert and and and litigate that particular thing. Yeah, no, we definitely still lost money on it.

0:13:24 Thomas: So. Still. A. Money losing. Proposition. Sounds. Like. Yeah. Boy.

0:13:29 Andrew: And and that's the only time. And I've had people do some pretty horrible stuff to me in court. So so there's not a lot.

0:13:36 Thomas: We had to start a new segment that's like Andrew's war stories. Of your, I would actually be really interested by that. There's always, there's always an interesting tale for every law we're talking about where you had litigated it or something, it seems like.

0:13:49 Andrew: I can do a comedy shoeshine style spinoff podcast and

0:13:57 Thomas: All right, let us get over to our main topic for today. I think, I am going to go ahead and say, people tell me, I have heard that this was very long awaited. I have not actually heard that, but I am guessing by now, the long await part two of You Be the Supreme Court, where I get to be, finally, that's I get to be the Supreme Court and you can kind of play along too, but no, I'm the one who really counts as a Supreme Court. Where are we at today? We're at the state's response, right?

0:14:27 Andrew: If you recall back to the petitioner, which is this is the Trinity Lutheran Church case in which Trinity Lutherans Church applied for the right to participate in a Missouri program that that pays to recycle tires to use them to repave and and schools and the like. And so Trinity had applied for the program on the merits. They were deemed the fourth best applicant out of 54. But the state guidelines say if you're a religious organization, you don't get to participate in the program. So they were denied the opportunity to get this government subsidized resurfacing of their playground, which was attached to their church.

0:14:27 Thomas: Okay.

0:15:14 Andrew: And if you recall, there were sort of three arguments that we evaluated that were contained in the plaintiff's brief and in the petitioner's brief. And I should mention, I just corrected the word there. When you file a lawsuit in a trial court, you are the plaintiffs. OK, so Trinity Lutheran Church was indeed the plaintiff at trial. When you lose that trial andyou appeal to the United States Circuit Court that sits above Above that federal district court, you then become the appellant on appeal, regardless of whether you were the plaintiff or the defendant below. And when you petition the U.S. Supreme Court for certiorari and it is granted, you become and meaning you have lost at the appallant court level, you becomes the petitioner. So that's a little.

0:16:04 Thomas: Can You give a 10- second refresh of how it went in this case, like who did what first and

0:16:05 Andrew: Yeah. Yeah, So Trinity Lutheran Church, a Missouri Lutheran church. So so Trinity Lutheran Church sued for declaratory relief in the district court in Missouri and lost. They appealed to the United States Court of Appeals for the Eighth Circuit and lost. Then they petitioned for writ of certiorari to the U.S. Supreme Court, which was granted and is pending.

0:16:13 Thomas: That Can't be constitutional. Okay.

0:16:39 Thomas: Interesting.

0:16:39 Andrew: So two-time loser. They lost on the state of Missouri move to dismiss the complaint at the trial court level. So no discovery, no facts beyond that which are listed in the complaint. We know from our previous discussions a motion to dismiss means that we interpret all of the facts as if they're true simply by being alleged in the complaint, and we construe all inferences, all reasonable inferences, in the manner most favorable to the plaintiff, now appellant, petitioner on appeal. Okay?

0:17:16 Thomas: I'm guessing we're going to hear some of that today because I hadn't thought about it from that angle.

0:17:20 Andrew: So you may recall that the three major arguments that Trinity Lutheran made in their opening brief were number one, that this violated their free exercise clause, right to practice their religion, uh, because essentially they were being forced to choose between being religious and being able to participate in this governmental program that number two, Two, it violated the Equal Protection Clause because the criteria being used to differentiate among applicants picked a suspect class, which is to say being religious, and said if you're a member of that class, if you are religious, you don't get access to this program.

If you are nonreligious, you do get access to the program. And the analogy is, you know, think about if it had said all, you know, white owned businesses get to have access to resurfacing of their playgrounds, but all black and minority owned preschools do not like that would that would very clearly violate the Equal Protection Clause. And they're saying, yeah, and saying just replace minority status with member of a religious organization and it's the same thing and then their third argument was a defensive argument uh there was a particular case uh going back so that I don't

0:18:21 Thomas: Would Hope Oh

0:18:37 Andrew: Sound like a complete idiot uh and then their third argument, which was a defensive argument, that the Supreme Court case of Locke v. Davey, which upheld a state of the state of Washington's excluding from its scholarship program those who were pursuing a degree in ministerial divinity school, right? Like they were actually pursuing a decree in preaching. And the Supreme Court said that was rational to exclude those individuals from being able to participate in the scholarship program, because otherwise you'd have state scholarship money going directly to fund religious

0:18:37 Thomas: Ah That was It sure Sure

0:19:16 Andrew: Practice. OK, so those are the three arguments. I think your view, Thomas, if I can say fairly, was, well, why don't you, why don't you let me not summarize your views. You tell me Oh, those arguments.

0:19:24 Thomas: Yeah I, I Thought, I thought it made sense. I don't know, I I was somewhat overall convinced. Of course, I don't have the expertise to analyze the, you know, the particular legal claims in each, in each argument and know for sure, like, oh no, this is, this is meritorious and this isn't because of whatever reason, but it, it sounded reasonable, especially when you say replace, race with religion. It seemed logical to me. I remember the biggest thing was I was confused between what the difference between the First First Amendment case and the 14th Amendment argument, rather, was, they sort of blended together for me. I didn't really get what the difference was. I still don't. And maybe I will, I'm looking forward to maybe being able to figure out why I couldn't figure that out in today's episode.

0:20:11 Andrew: So the state of Missouri has now had the same access to Trinity Lutheran Church's brief that we've had. Right. So they got to see it. And this is their opening brief, which gets to respond to that brief as well. And it falls into two parts. So first they argue there's no First Amendment free exercise violation by having the Missouri policy. And second, they argue, there's No Equal Protection claim. So let's take a look at that argument, see how it responds to what Trinity Lutheran has said, and see how you feel about it at the end Of that. All right.

So, uh, linked in the show notes, go to page five of the brief that begins the argument section. We are skipping the introduction, which summarizes their argument. Uh, and now we get into the, the meat itself. So argument number one, does not violate the First Amendment. The introductory paragraph, the free exercise, by its plain, free exercise clause, by its plain language, prevents the government from, quote, "prohibiting the free exercise of religion." It does not guarantee churches opportunities for public financing, nor does it require that the government act with strict neutrality towards religious and non-religious interests. The challenge policy places no meaningful restraint on Trinity Lutheran's ability to freely exercise its religion. For that reason, it was properly dismissed.

0:20:45 Thomas: All right.

0:21:31 Thomas: Okay.

0:21:31 Andrew: So, Section A, Free Exercise Clause forbids only government action that prohibits the free exercise of religion. It does not require that the government subsidize churches. So they quote the amendment. Now we're on to page six. And the first place they go is to say that the free, is to talk about the history behind the Free Exercises Clause. Laws. And they say it was adopted in reaction to the oppressive practices our founders recognized in their former governments throughout history. And then there are quotes from a whole bunch of cases about, you know, sort of the American narrative of coming over to be free from state subsidized churches. Why do you think they start off with this argument?

0:22:11 Thomas: You really put me on the spot with this. Why do I think they start off with that argument? I don't know. Because they, oh,

0:22:13 Andrew: I'm trying. Yeah. Yeah, Yeah. Think strategically. Who's your audience when you're writing this brief?

0:22:21 Thomas: I see. So you're trying to appeal to to the people who are going to be big fans of the founders, I'm guessing.

0:22:27 Andrew: Yeah. In particular, so this brief was filed June 28th, 2016. So it was filed after Scalia's death. But nevertheless, you have three justices on the Supreme Court who describe themselves as originalists. And so you are a lawyer thinking about how I'm responding to the other side's argument, you want to think about can I broaden my appeal, right? If I come in with a straight up sort of liberal argument on strict separation of church and state, I know three judges on the court to whom that's likely to have a reasonable appeal.

0:22:45 Thomas: Right.

0:23:11 Andrew: It's going to have.

0:23:11 Thomas: That's so interesting. You know, this is funny. It's another chance for me to just kind of reveal how ignorant I am in general. Just wouldn't have thought to that depth about the state's response. I think of it in general, I think, of the state as this disinterested kind of monolith of like, like, all right, here's what we think the, the law is. Here's why we think that, like, I don't think of it as this response is composed by very smart lawyer people who are like you, very intelligently trying to strategically get their argument to be heard the right way. I sort of think of them as not a lot of skin in the game. Like they're just kind of going to answer how they think legally it should be. But that's, of course, absurd now that I think about it. So I just wanted to tell everybody that this is why we listen to experts like Andrew Torrez.

0:23:57 Andrew: Well, and you know, if you think about it, there's I mean, there are sort of their real human egos at stake here, too. Right. I mean this is.

0:24:03 Thomas: Sure. Never underestimate the ego of a lawyer. Am I right, everybody?

0:24:07 Andrew: Because, yeah, exactly. But yeah, so that it's there are real people who, you know, really want to see this policy upheld and they don't want to have to go back to their boss and say, you know, hey, I lost defending this policy in court. I will point out that this does happen to when you have a change, you know, particularly a radical change in the character of an existing government, you will sometimes have state will decline to pursue an appeal because, you know, politically things have shifted. And so a really good example of that is in the intelligent design case of Dover, Kitzmiller versus Dover School District, the district court, you know, the trial court ruled in favor of the plaintiffs that intelligent design did not belong in the schools.

0:25:02 Andrew: That's just a trial court decision. But ultimately, as we know from talking about the structure of the courts, the state of the school district, the Dover School District, had the opportunity to appeal that, which would have then appealed to the Third Circuit and declined to pursue that appeal. Because while the while the case was being fought, the school board elections came up and all of the old school board was voted out on this issue.

0:25:31 Thomas: Awesome.

0:25:31 Andrew: Yeah. And and replaced with a, you know, what is described, I would accept the description as a pro science school board. And so they and

0:25:39 Thomas: That's generally something you might want in a freaking school board as opposed to... All right. We're an anti-math school board. What? Yeah.

0:25:43 Andrew: So they threw in their cards. And

0:25:49 Thomas: Anyway. Right.

0:25:49 Andrew: So, you know, that happens with governmental policies, too, sometimes where there are, you know, legacy policies that, states will sometimes say, hey, look, we're no longer going to pursue this on appeal because, you know, you could imagine a lawsuit filed now. The governor of that state might come up for election or reelection in, you you know, this being an election year. And then by the time the case is heard and comes out one way or the other, you know there may be a completely different political regime in the state. And so they might decline to defend the policy, they might declined to pursue an appeal, that sort of thing. So that does happen. Here, state of Missouri wants to vindicate its policy with respect to excluding religious applicants from the recycling program.

0:26:38 Andrew: And, and so the first place they go is, let's talk about the history of what the Free Exercise Clause means. And that's a direct shot to the most conservative wing of the court. There's going to be more of that. We'll see. Then they go on to say, these are decisions from previous cases, right? And again, we've talked about quoting from a previous Supreme Court case helps establish for the centrist and liberal wing, right, what is the precedent? So now we've said, you know, look, look at all of these old cases, and these cases are 1947, 1952, 1957, right? Then the Supreme Court says, or then the brief says, "It is necessary in a free exercise case for one to show the coercive effect of the enactment as it operates against him in the practice of religion."

0:27:23 Andrew: It is clear that where the government imposes a criminal penalty on particular religious activity, the affected individual may pursue a free exercise claim. That cites to the City of Hialeah case that we have talked about at some length. That was the ordinance prohibiting ritual sacrifice of chickens that Was designed to target practicers of Santeria. Uh, indirect coercion or penalties uh on the free exercise of religion, not just outright prohibitions, may raise free exercise concerns, um, but this precedent, however, does not and cannot imply that incidental effects of government programs, which may make it more difficult to practice certain religions, but which have no tendency to coerce individuals into acting contrary to their religious beliefs, implicate the free-exercise clause. Okay, so that first part is basically saying, hey, look, let's make sure we're evaluating the Free Exercise Clause properly. If you look at the history and if you look at our recent decisions, you'll see that, yes, if we target your religion, if a law targets your religion, then that is violative of the Free Exercise Claws.

0:27:40 Thomas: Yeah.

0:28:27 Andrew: And even if it contains nasty penalties or the like, it might violate the Free Free Exercise Clause, but laws that just make it more difficult, but have no tendency to coerce you into acting contrary to your beliefs, a pass-free exercise muster. How does that strike you?

0:28:44 Thomas: Interesting. All right, that kind of makes sense. I was afraid of this, I'll just be swayed by any smart lawyer making an argument.

0:28:53 Andrew: Yeah. So now we dig into the meat of the argument, which is the meat of this first component of the agreement, which is declining to subsidize the churches does not, quote, prohibit religious exercise. This is subsection two. This is the end of page eight, beginning of page nine. And this is really astonishing. So it's it's why I want to read it in terms of the strategic element. Recently, Justice Thomas observed, that's Clarence Thomas, since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. And the citation there is Bergefell re-hages from Thomas's dissent. He goes on.

0:28:53 Thomas: Uh. Right. Yeah.

0:29:59 Andrew: Equal Protection Clause. So when they're citing to Thomas's dissent, they are citing to the arguments that Clarence Thomas is giving in the Obergefell decision about how churches need to be able to prohibit gay marriage and how religious people need to be able to prohibit gay marriage as an expression of that throughout their states. And that is, is, um, to me, this is an incredibly ham-handed, passage. Um, I don't think in this case you have any chance, unless it is an 8-0 or 9-0 decision based on what happens with the Supreme Court. Uh, I I don't think you have any chance of getting Clarence Thomas's vote, and not. I think it's, it's more likely to be viewed as sort of excessively cheeky to take his dissent, because usually the reason you cite to a dissent. Right. A dissent is not law. Like, by definition, it's.

0:30:54 Thomas: Yeah, I was gonna So I was gonna ask, like, what I, can you, can you clear that up a little bit, maybe, to what they're trying to do there when they're referencing his dissent, because It's not exactly clear To me.

0:30:56 Andrew: Yeah. Yeah, right. Right. So a dissent is, right, it's not law. It's the opposite of law. Dissents can be, they can be effective in terms of a court later revisiting and overturning a prior decision. And they can also be useful for appealing directly, for understanding and appealing directly to that judge itself. So what they're trying to do in this case is to say, hey, look, Justice Thomas, when you dissented in Obergefell, you said liberty does not create the right to an entitlement to government benefit. It only means it is. This is the classic Lockean argument, right? Liberty means the right to be let alone from the government, but not the freedom to have additional stuff. Right. And they could cite to any number of things throughout the Supreme Court's history because that principle itself is

0:31:44 Thomas: Yeah, but they picked this particular thing to reference because they thought this will appeal to Justice Thomas.

0:32:00 Andrew: Right? Right, they thought this would this would appeal to Justice Thomas. Thomas, uh,

0:32:08 Thomas: When he said that, that's the part I'm not exactly clear on. When he says that in dissent in that? How did that apply to that? Case in his mind.

0:32:19 Andrew: So in the Obergefell decision, Clarence Thomas is doing is arguing that the conception of ordered liberty that the to which the petitioners were referring as encompassing the right to marry. And we talked about this in our in abortion episodes, that it could not extend as far as what he considered sort of the fundamental change they were looking to wreak on the country here. And so his his dissent is a very, very lengthy into this sort of history that says, "I have elsewhere explained the dangerous fiction of treating the Due Process Clause as a font of substantive rights. Rights. We are straying from the text of the Constitution. Even if the concept, the doctrine of substantive due process, were somehow defensible, it is not. Petitioners still would not have a claim to invoke the protection of the Due Process Clause at all. A party must first identify a deprivation of life, liberty, or property.

The majority claims that these state laws deprive petitioners of liberty, but the concept of liberty it conjures up bears no resemblance to any plausible meaning of of that word as it is used in the Due Process Clauses." And so then, as you might imagine, what do you think, if you had to pick a date in our nation's history for the next citation, knowing that Clarence Thomas is a disciple of Antonin Scalia, what date might you pick?

0:33:51 Thomas: Something in the late 1700s. Yeah okay.

0:33:56 Andrew: Yeah, the next citation, I actually was sort of deliberately steering you wrong there because Because the next citation is to Blackstone's commentaries on the law of England from 1769, which you may recognize as 18 years before the nation was founded. And that quote is, "Liberty refers to the power of locomotion, of changing situation, or removing one's person to whatever, to whatsoever place one's own inclination may direct, without imprisonment or restraint, unless by due course of law." And then Clarence Thomas says that definition is drawn from the historical roots of the clauses and is consistent with our Constitution's text and structure. And then I am not going to read any more. But but essentially.

0:34:11 Thomas: Oh, my gosh.

0:34:35 Thomas: Well, good, because I'm already about to have a heart attack with how frustrated this makes me.

0:34:38 Andrew: Yeah. Right. So Essentially, there is then 10 pages in the dissent that say liberty just means freedom from it, just means the government can't prevent you from doing something. It doesn't mean you're entitled to an affirmative right to something. And what this would say is you want the affirmative right to be entitled to marriage. Now, why that's not characterized, why you would not also view that as a negative right is beyond the scope of this podcast. I think it very clearly is. So they go back. So the plaintiffs in this case are sort of, again, I think It's an effort to appeal to Clarence Thomas, But I think he's going to view this as tweaking him, to be honest.

0:35:04 Thomas: Yeah, yeah. Yeah.

0:35:20 Thomas: Well, plus, like you were saying, I mean, aren't you just at this point trying to get everybody but him and maybe, you know, you're trying to give him a few select. Are you really going for an 8-0, like he said? I mean I just don't see that as realistic in this case.

0:35:28 Andrew: Yeah. Yeah, then we move from Thomas into the substantive analysis that comes from actual holdings of cases and not from dissents, where they say, this court has long held that the government has no obligation to fund its citizens' exercise of their constitutional rights. They cite a case in which was a federal tax policy that withheld tax-exempt status from nonprofit organizations that engage in, quote, substantial lobbying, right? In fact, this policy is still active today. So if you're a nonprofit, to maintain that nonprofit status, you have to not engage in overtly political lobbying behavior, Right.

0:36:14 Thomas: Yeah, seems right to me.

0:36:16 Andrew: Yeah. But but think about that. In order to do that, they have to say, you exercise of your free speech rights are conditioned upon not participating in this nonprofit entity. Right. So then they say similarly in Harris v. McRae, 1980 case, the court held that the government had no obligation to fund medically necessary abortions despite constitutional protection for abortion rights and federal subsidies for other medically necessary services. And in that case, the courts held that the government had no obligation to provide the resources needed to enable the woman to actually exercise the right and that the governor's decision not to fund medically necessary abortions left indigent women with, quote, "at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have if government had chosen to subsidize no health care costs at all."

0:36:21 Thomas: Uh-huh.

0:37:10 Andrew: In other words, the government's refusal to provide funding for abortion services was not coercive in any constitutionally significant way. So you put all that together, and their argument is that refusing to fund something is not the same as denying you the opportunity to exercise it.

0:37:28 Thomas: Hmm. You know, that's interesting. Maybe it's my bias, but that abortion example, that didn't, I don't know. I kind of was leaning the other way on that. But that's interested to think about. But one that was, I think, particularly appealing to me was the free speech one you brought up with the lobbying thing. That makes a little bit of sense to me. So, interesting. I'll let you continue.

0:37:30 Andrew: OK. OK. Tell me why.

0:37:52 Andrew: Then the next part of the argument, this is pages 12 to 14. I'm going to skip over it because we've already talked about this. This is the Locke versus Davey. Right. The case is on point, Trinity Lutheran Church knew that it was going to be cited and tried to preempt it. And sure enough, here it is. And remember, Locke, so in Locke versus Davey, the Supreme Court said it was perfectly reasonable for the state of Washington to withhold scholarship funds from students who were going into the active ministry. And here, go to page 14, the court's holding and analysis in Locke applies squarely to the present case. Trinity Lutheran, like Davey, applied for government funds but was denied funding because of its particular religious status. The state's funding policy here places no meaningful burden on Trinity Lutherans religious practice, certainly not a burden that could be called a prohibition on the free exercise of religion.

0:38:45 Andrew: Despite its ineligibility for the playground resurfacing grant, there is not a single thing that Trinity Lutheran is prohibited from or penalized for doing as a consequence of state action. It can still worship as it sees fit. It can teach as it sees fit. It can even resurface its playground as it sees fit. The state has merely chosen not to subsidize Trinity Lutherans' activities. So that's what Locke says. Now they have to distinguish the distinction. Um, and, uh, and there, there are two things here that I thought, uh were pretty interesting. I'm going to skip, the next five or six pages, even though I think they're good because I think you get to something that in my view is kind of a knockdown argument. Argument, which is Trinity Lutheran also points out that in Locke, Davy requested state funds for an inherently religious purpose, theological education, whereas Trinity Lutherans intent to resurface its playground is entirely secular.

0:39:43 Andrew: But this distinction does not work in Trinity Lutheran's favor. A state's refusal to support an aspiring pastor's religious education surely exerts a greater pressure on free religious exercise than does a state's refuse to to subsidize a church daycare's secular capital improvement project. That's one of those where you read that and if you were the lawyer who wrote it on the other side for Trinity Lutheran now reading this, you go, "Oh yeah, shouldn't have made that argument." And the reason is, one of the things you do when you're distinguishing a case is you say the facts of this case are different, different from when you, when you want to distinguish a case, that is, there's a case that's arguably similar to the case that you're presently in that came, yeah, that came out the other way, so what you do as a lawyer is you distinguish that case and you say, "Oh well, this is only important because of this fact which isn't present here," and and there's an art to that, uh, and yeah, that's

0:40:25 Thomas: And it goes against you. Yeah, yeah, yeah.

0:40:37 Thomas: Yeah, because if you distinguish it in a certain way, you blew it as regards a different argument, right? Is that what happened, pretty much?

0:40:46 Andrew: Exactly what I think happened here. So that's how they, uh, the state of Missouri, uh, distinguishes the distinction for a lock and argues that lock ought to apply, and then they move into uh a further analysis of the effects of the project. Because remember, if ultimately under the First Amendment, the question is, are we prohibiting the free exercise of religion? That's an empirical question, right? Right. That is, this more like the cases that impose, you know, is this more like the City of Hialeah case, which says, if you sacrifice a chicken, we're going to find you or potentially put you in jail, right, we can understand how that level of coercion is deeply prohibitive of your right to practice your religion, right?

0:40:46 Thomas: Yeah.

0:41:40 Andrew: Versus cases that are perfectly reasonable. So what they want to do is they want to take a look at what are the effects of the Missouri policy. And I'm going to try and not overly, you know, read too much, but "Lutheran's misapprehension of the playground resurfacing grant program as a generally available public benefit is essential to its constitutional argument. When that mistaken premise is rejected, the rest of the argument collapses." Okay, so what they're saying is it's not a generally available public benefit. Then they say, "Not all non-religious daycares receive the funding. As noted above, just over 30% of those that applied for funding in 2012 received it." That's citation to Trinity Lutheran's own brief, okay? "Trinity Lutheran's does not attempt to argue that its right to freely exercise its religion would have been violated had it been denied funding simply because its application failed to achieve a sufficiently high score to prevail over the more competitive applicants."

0:42:36 Andrew: "Nor does it argue that its ability to freely exercise its religion was impaired prior to its application for funding, when its playground was resurfaced with gravel. But if Trinity Lutheran's freedom to exercise religion is unaffected by whether it actually receives any money or actually resurfaces its playground, the state's refusal to provide funding here cannot possibly have burdened the church's religious practice. Trinity Lutheran's ability to freely practice its religion, having been deemed ineligible for grant funding here, is no different than had it been denied funding because its application was uncompetitive, or had the grant program never been created at all. This distinction differentiates the present case from every case cited by Trinity Lutheran's in which a free exercise violation has been found. In each case in which, uh, a government benefit was withheld due to someone's religious exercise, the benefit was one that all similarly situated, qualified individuals were entitled to receive without a discretionary decision to be made by government administrators."

0:43:34 Andrew: And they go through all the cases that were cited. This is another example of the distinction that I just talked about. So yes, they cited these cases, but in those cases, there was no discretion. And the discretion element here, the argument is, means that this is not inherently coercive. In the the conclusion, because Trinity Lutheran cannot demonstrate that its free religious exercise was impacted at all, let alone prohibited by the state's discretionary decision not to fund its secular playground improvement project, the free exercise claim must fail. How does that strike you?

0:44:04 Thomas: All right. I like a lot of it. I'm going to go a little bit devil's advocate, just for the sake of seeing how easily you can crush this.

0:44:09 Andrew: Good.

0:44:14 Thomas: But what about if we, again, let's go back to replacing race. Now, what if we said, okay, not all white people got this, but it just so happens that, yeah, no black people got it. But yeah, no, not all white people were entitled to this. Is that sort of analogous or not at all? What do you think?

0:44:35 Andrew: So I think that's a great transition to the next section because the race argument is is the equal protection argument, not the First Amendment argument, right? The First Amendment argument is only about, does this behavior prohibit the free exercise of religion?

0:44:40 Thomas: Uh-huh. Oh, okay. All right. Well, okay, we'll say no. Yeah, okay they win that one. Now let's go to the other one.

0:44:55 Andrew: Yeah. Right. So, well, let's, and then, I think it's interesting because section B of number one, so we're still on First Amendment, the Free Exercise Clause permits the state to address religious and non-religious interests in a non-neutral manner. And so distinguishes free exercise clause jurisprudence from the very argument that you've just made. And one of the things that the state of Missouri says is that think was incredibly instructive was they sort of picked up on your discomfort from reading the petitioner's opening brief and conflating the free exercise clause with the equal protection clause. And so what they say is, Lutheran cites a number of cases in which this court has discussed the importance of neutrality, quote unquote, but none of those cases turn on the application of the free-exercise clause. Clause. Several involve government's effort to suppress religious speech or limit a church's access to a public forum, right? Citations. Others involve policies favoring religious organizations or objectives that this court held violated or did not violate the establishment clause.

And still others discuss the application of the equal protection clause in circumstances having nothing to do with religion. And a whole bunch of citations, including the Cleburne site that we talked about in the last episode. Trinity Lutheran has cited these cases to support its argument that the Constitution in many contexts prohibits status-based discrimination. But this is an equal protection argument masquerading as a free exercise claim. These cases shed

0:45:21 Thomas: Okay, uh-huh, uh, vindication.

0:46:35 Andrew: Little light on the First Amendment question, whether differential treatment of religious and non-religious groups, quote, prohibits the free exercise of religion. So I was kind of deliberately cagey with you, but I think even as a non-lawyer, you were reading the opening brief saying there seems seems to be a little bit of a, of a tension here. This looks like, you know, we're conflating together under the free exercise clause, the same kinds of arguments that we're making under the equal protection clause. And without saying, uh, yes, other lawyers are going to agree with you on that. Uh, other employers are going agree with that. So this is another, uh. Point in your favor for, yeah, no,

0:47:12 Thomas: You could have told me that. I've been worried for weeks now that I just completely missed something. Turns out I'm just a secret genius. Let's, no, not really.

0:47:23 Andrew: It's another point in your favor for the notion that you should be awarded an honorary law degree for doing this podcast.

0:47:29 Thomas: Well, I'm at least going by Thomas Smith Esquire. I know that doesn't mean much, but I'm doing it. Some people probably do think it means a lot. So stupid people will think I'm a, I've got a really good? They'll think I'M really qualified by that. So, well, I'M glad to hear it. I really didn't get the difference between their first amendment and 14th amendment arguments. And I still think I probably, some of it was because I'm, I just don't know as much as you, but maybe some of It was because they were messing up or something.

0:47:30 Andrew: Yes, yes, yeah. Okay, I think that's right. And so that ends argument one. We're now at page 30, argument two. So argument one was no free exercise violation because nothing is prohibiting the free exercise of religion. Now we have to answer the argument you raised in response, which is, well, what about the equal protection argument, right? Okay. Offering this to some, uh, offering this to some groups, but not others, but excluding all churches. Maybe that doesn't prohibit you from exercising your religion, but isn't this discrimination on the matter of a suspect class, right? We wouldn't tolerate this if there was a program that some whites, but no minorities got access to. And that's absolutely correct. And the reason is because race is a suspect class. And so under the 14th amendment, under the equal protection clause, if you make discrimination on on the basis of a suspect class, the law must pass strict scrutiny. We talked about this in UB, the Supreme Court, part one, right?

0:48:41 Thomas: Right. Yeah. Is this the nuclear example, the nuclear, like pregnant women, and not, is that what, when you brought, yeah.

0:49:04 Andrew: Yes, yes, exactly right. And strict scrutiny means that by and large, it's going to fail, right. Strict scrutiny means that it fails. Rational basis means by and larger that the law stands. And then there's some classifications in the the middle that are not important to go into right now. So argument two does not violate the Equal Protection Clause, subpart A, 31. Government policies that treat the class of, quote, all religious groups differently from similarly situated non-religious groups survive equal protection review if supported by a rational basis. So here, what Missouri is arguing, arguing let's let's begin with their paraphrase of of Trinity Lutheran's argument. Trinity contends that the court should apply strict scrutiny to the state's exclusion of religious organizations from the playground resurfacing grant program because the state policy, quote, employs a suspect classification, but Trinity's argument finds no support in the cases it cites are elsewhere in this court's precedent for the proposition that the class of all religious groups, as opposed to all non-religious groups, constitutes a suspect classification.

Why is that? Argument 1, page 32. Nothing in this court's precedent suggests that that policy requires anything but a rational basis. To the contrary, in Locke, the court applied a rational-basis review upholding Washington's policy on the scholarship. Likewise, in another case, Johnson v. Robinson, the Court declined to apply any form of heightened scrutiny to a law purportedly burdening religious individuals who who had declined military service as conscientious objectors. The court held that the denial of certain veterans' educational benefits to these individuals did not violate their fundamental right to the free exercise of religion, and then addressed their equal protection claim, stating, "Since we hold that the act does not violate the right to free exercise,

0:49:06 Thomas: Okay. Right.

0:50:52 Andrew: We have no occasion to apply the standard of the challenge classification any stricter than the traditional rational basis test." Okay, so that means if you violated their rights, then it forms a suspect classification. But the idea that you differentiate just between religious groups and non-religious groups does not require strict scrutiny. That's going to require a little bit more support for the argument. I'm going to skip over distinguishing the cases that are cited because that's not that interesting. And go to two, which begins on the bottom of page 35, that says, "Further weighing against Trinity Lutheran's request that the court categorize all religious groups as a singular suspect class is that the indicia typically considered by the court in identifying suspect classes are absent."

0:51:45 Andrew: When determining whether classification qualifies as suspect, this court historically has declined to designate it as such if the class is, quote, "not saddled with such disabilities, were subjected to a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process," end of quote. Okay, and that's a well-known decision. Individual religious denominations may certainly qualify as suspect classes under this definition, but a class comprising all All religious groups, however, does not. Any suggestion that religion, generally speaking, confers upon a person or group political powerlessness in the United States ignores the extent to which religion is deeply intertwined with our political and cultural history.

0:52:30 Andrew: I'm going to skip a quote and then say, and history shows that when the class of, quote, all religious groups has been unable to achieve its desired results by relying on the First Amendment, it's able to drive policy through the political process. For example, the enactment of the Religious Freedom Restoration Act, RFRA, and subsequent inaction of the religious land use and institutionalized persons act demonstrate the political power of religious interests. And then they go through in kind of an opening argument style way. This is the bottom of 37 beginning of 38. It's really good where they say, look, we had this Oregon. We had the employment division versus Smith. Right. That's the peyote case. And in concluding its opinion, the court said, you know, this is to affect, you know, a all of the free exercise laws. And then just three years later, Congress displayed the extent of its solicitousness by enacting RFRA, which by its express terms sought to abrogate the court's ruling in Smith, quote, see the Hobby Lobby.

0:53:25 Andrew: And then they talk about RFRA. They talk about then RFRA was restricted in the City of Bourne versus. Flores case. And what happened? Three years later, Congress again enacted RLUIPA, which imposes the same general test as RFRA, but on a more limited category of government action. So, in other words, they go through and say a suspect class is one that has that we think of as being politically powerless and therefore requiring protection against legislation by the majority. That's why, you know, when we name certain groups protected classes like African-Americans or like women, it's based on a history of discrimination and inability to get your rights vindicated through the political process. And religious people don't have that problem. Um, they, they can get their rights vindicated through the political system all the time, uh, by any traditional measure. Yeah, go ahead. Yeah,

0:54:15 Thomas: That's interesting. So I, I Wonder then just hypothetically what, what it would have to take to get certain groups off that list. You know, like what if, for example, gay people, I assume sexuality is some, some, well, maybe it's not. Is that one of those, uh, okay. That.

0:54:35 Andrew: It's not clear. We are moving towards, I will say, one of the things that I think is really, really interesting in equal protection law towards analyzing that involve issues under gender classification as an unequal application of classification. Class of gender as opposed to sexual orientation. Right. So, for example, the argument that was made in Obergefell was I am a man, I can marry a woman, but a similarly situated woman cannot exercise that same right that I have. And so therefore, that's it's really discrimination based on sex. It's not just discrimination based on sexual orientation. And the reason for doing that is because sex based discrimination is much more clearly entrenched in the law. Right.

0:55:17 Thomas: Is. A protected. Uh. Uh. Interesting.

0:55:27 Andrew: And and and I think, you know, the Obama administration has recently said they're going to take that opinion and they are going to their Justice The Justice Department is going to argue that in cases that involve employment discrimination under the Civil Rights Act of 1964, is a departure from the previous analysis in which courts have said, hey, look, we tried to amend the Civil rights Act of of 1964 to add sexual orientation. Similarly, there is ENDA, the Employment Non-Discrimination Act, which would explicitly amend the Civil Rights Act and add sexual orientations as a protected class to prohibit employment discrimination.

0:55:27 Thomas: That's.

0:56:14 Andrew: And that's been rejected. And so lots of courts have taken the position that said, hey, Congress hasn't acted, so therefore, therefore, don't get the benefits. Therefore, it's totally OK in 30 states where you don't have state equal protection laws on the basis of sexual orientation for your employer to say, no, you're gay, I'm firing you on that basis. I think it's it is a currently a minority position, but a robust minority position. I'm glad to see the the Obama team basically saying that that in court they're going to take the position that the Civil Rights Act of 1964 extends to cases of sexual orientation on the basis of its prohibition on gender.

0:56:54 Thomas: Interesting. So we are, it looks like we are a little bit out of time. Do we need, how, how close are we to concluding me being the Supreme Court here?

0:57:02 Andrew: So the last thing that I would point you to for this argument is on page 42, which involves a case that is the Mormons versus Amos, which involved, um, the, uh, Title Seven, which has a an exception for religious organizations that gives any religious employer the opportunity to discriminate on hiring grounds on the basis of religion, right? So we know generally the Civil Rights Act says you can't discriminate on the bases of religion. But one of the things you can do is if you're a religious organization, you can say, we're only going to hire people for our religion who are members of that religion. And this Amos decision involved the Mormons running a gym and basically said it was okay for them to only hire Mormons to staff the gym, that that didn't trigger the rights under Title VII because of the religious employer exemption.

0:58:00 Andrew: That's under some criticism, as you might imagine, and the extent of what counts as a religious employer and what counts, you know, this came up in the Ark Park, for example, right? Right. So I but I mentioned it here because I think it's a pretty clever argument. And what they point out is giving religious employers the exemption. Right. Necessarily means that we are drawing a distinction in the law that protects protects religious employees differently than non-religious employees. Right. And so, again, it's another illustration of and that seems to be perfectly fine and consistent given the court's existing jurisprudence. So it's another avenue to if I were to summarize all of this, the state of Missouri's response to the just replace religious organization with black people, right, their response is, well, the group of all religious people isn't like the group of all black people. Right. And it isn't like that because historically religious people are not discriminated against and excluded from the political process. And also because, uh, right, right.

0:58:28 Thomas: Yeah. Yeah, there's all these other laws where you're allowed to do that or look at religions differently, right?

0:59:11 Andrew: And, and, and that's unlike, you know, those laws, those flaws and principles do not support treating people differently on the basis of race. So, so that I think I just want want to get out that last bit of the argument. Now, having read the state's response, how do you feel?

0:59:11 Thomas: Right.

0:59:29 Thomas: Boy, how about that state, huh? That's pretty good. I would say, okay, so here's my overall thoughts, I guess at this point, because there is going to be a part three when they respond, right? Okay. At this point, I would say my initial kind of go with the flow reaction of part one was that I really don't, I think it was motivated more, less by the legal minutiae and more by that. I really wouldn't care if we just went ahead and gave some religious people some chewed up tires to put in their playgrounds. I think that that's what was maybe be motivating me more. And now that I think about it, in light of all this legal framework that you've illuminated for us, I think that would probably more apply when Missouri or whoever it was, was initially coming up with this scoring system and the fact that they were going to disqualify or whatever from it.

0:59:35 Andrew: Uh-huh. Yes.

1:00:26 Thomas: I think that's where that intuition of mine would make more sense versus now, when you lay out the legality of it, if we're looking at a Supreme Court case of whether this violates the Constitution and all this, I would say I get it now, no, it doesn't, I don't think it does violate constitutional rights, I, I again, I would think I don't care if they were able to have these tires for their playgrounds, but that's something that would have been decided a different way than by this case. Does that make sense?

1:00:55 Andrew: Yeah, that makes a lot of sense. And I have omitted the state policy-based arguments defending its position because, as you correctly note, you know, this is about constitutional interpretation, right? If Trinity Lutheran wins, Missouri is constitutionally prohibited from doing what they're doing. So the question of whether they had a good reason to do it is sort of a secondary issue. We can kind of presume, but here's their reason, right? Their reason is we have limited funds able to spend on resurfacing playgrounds. And every dollar we give to a religious organization to resurface the playground frees up another dollar for them to to use on something else.

Whereas if we're giving it to something that is unaffiliated, that is purely secular, then we know 100% of the money that we're spending is going directly to improving the conditions for the kids. And so we've made that decision that we don't want to be accused of aiding religion and fostering it in our state. We want to draw kind of a completely, completely, you know, secular lines. So we've said, yeah, secular daycares, we want you to be able to participate. Religious daycarage, keep doing what you're doing, but you don't get to participate in this program.

1:00:55 Thomas: Yeah. Yeah, yeah, yeah. Makes sense

1:02:15 Andrew: That's the rational basis. Okay, well then in part three, we will look at Trinity Lutheran's reply and see if it shifts your mind.

1:02:24 Thomas: To me. Yeah. I would hope not at this point, but you never know. I mean, for better or for worse, I'm very capable of changing my mind on stuff. It could be, it could make me look like an idiot though. So we'll see.

1:02:26 Andrew: Well, now you're stuck. Now you're rooting for a side.

1:02:38 Thomas: But, oh, whew. Thank God. I mean, you're just reacting to my image in the camera though, right? Is that what you're talking talking about?

1:02:38 Andrew: I think you've looked great throughout this. Well, yeah, luxurious

1:02:47 Thomas: My hair is fantastic. Is that, that is what you mean, but, but the listeners can't see that. So, so excellent job. I, that's really cool. I that I was so worried that I blew it in part one, but it sounds like I didn't fortunately, but by, uh, by luck or by some sort of weird, uh savvy, I don't know. It's up to you guys to decide somehow I didn't blow it. All right. So, let's go over to our closed arguments, which I'm very excited about.

1:02:52 Andrew: And flowing.

1:03:17 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.

1:03:27 Thomas: All right, Andrew Torrez, closed arguments. How do we put this? 18-year-old strippers, yay or nay?

1:03:35 Andrew: So this is an article from Consumerist involving a lawsuit brought two or three days ago by 18 to 20 year old strippers in the state of Louisiana. And state of Louisiana has a law barring women under the age of 21 from, yes, just women, from at strip clubs. And it says the law says entertainers whose breasts or buttocks are exposed to view shall perform only upon a stage at least 18 inches above the immediate floor level and removed at least three feet from the nearest patron and shall be 21 years of age or older.

1:03:56 Thomas: Just women? Oh.

1:04:17 Thomas: Now, okay, I wasn't even thinking of this, but why do you think they they didn't just cover both sexes just in case, like, just so it? That it wouldn't just be dismissed because it's unfair to, you women to have, why wouldn't they just have said like, you Now, any, any entertainer, How did they phrase it? Any entertainer that might be removing their clothing, male or female, why didn't they do that just to be safe? Uh,

1:04:30 Andrew: And think the reason is because there's probably sufficient history in the law, particularly in Louisiana, defining the exposure of female breasts that does not apply to the exposure of male breasts. And so you might be avoiding a potential equal protection clause violation while exposing yourself, gosh, terrible use of the word, while potentially opening yourself up to, God, another terrible tone of phrase. But you'll be trading an equal protection violation violation uh for um something that takes that you out of the ambit of the statute, right, like if it's not yeah

1:04:54 Thomas: Okay.

1:05:12 Thomas: It's it's we're screwed, there's no way you know what that you found it, you found the phrasing that cannot be sexual in any way leave it to Andrew Torrez, that was incredibly boring and not sexual, but it took you three or four tries so you know not all is lost, amen.

1:05:24 Andrew: Right right yeah yeah yeah that's I'm gonna put that right on my business card as a important skill yeah well yeah so So here's, here's the, here's a case, so you have three plaintiffs that are between the ages of 18 and 20 that have alleged that the legislation violates the First and 14th Amendments. And the reason that they say it violates the First Amendment is because the Supreme Court, in one of my favorite titles of a decision ever, which is the City of Erie versus Pabst AM doing business as Candyland with a K, you know, was a strip club case that basically says that you have, that erotic dancing is, quote, within the outer ambit of the protection of the First Amendment.

It is a form of expression. And so these three young ladies are arguing that the law impermissibly denies them the opportunity to engage in protected First Amendment activity on the basis of their age. This is a closed argument segment because I think they're right. It is difficult to imagine what the compelling justification will be for taking legal adults who are entitled to their full constitutional rights and saying, no, no, we're going to prohibit you from being able to appear in strip clubs. So, um, I, I

1:06:30 Thomas: Yeah

1:07:06 Andrew: Think, yeah.

1:07:05 Thomas: Well, well, I know this is an issue that is very near and dear to your heart, so we'll just, just hope that, uh, goes the way that you want it to go. Just teasing.

1:07:15 Andrew: So I'm going to link, I'm going to linked the article, but, uh, but we've covered this in case closed, uh in closed arguments because, uh, it really seems pretty straightforward to me. Uh, it's also hilarious. Uh, and, and I, I want opening arguments to be firmly on the side of the right of teenage age strippers to, uh, to dance in Louisiana.

1:07:33 Thomas: Well, clarify. Whoa. 18 to 20 year old strippers. Clarifying. Jeez. Ooh. Yeah.

1:07:36 Andrew: Yes. Yeah. Legal teenage strippers.

1:07:42 Thomas: Okay. There you go. There you Go. We've taken a firm stance on that. That's one of our reasons to, when we started the podcast, actually, it was like, you know, one thing that's core to our values is 18 to 12 year old strip.

1:07:43 Andrew: Yes, to, uh, absolutely.

1:07:55 Thomas: I'm glad we've taken the stand. All right. Right yeah case closed and with that we've got to thank our patrons and. Thank you guys so much, everyone who is pledging over at patreon.com/law. New patrons include Chad Farrow, Arianne Kobler, David F Molay, RichardJJ, Greg, chuck, Marsh Howard, Damian kumor, James S. A. Brown, III. Ooh, quite a name. Thank You guys.

1:07:57 Andrew: All right. So case closed.

1:08:37 Thomas: I think it's la bibliotequetress. And we got to think our all time greats, our Hall of Fame patrons. That's Roger Metcalf, Dan Irizarry, Eli Bosnick, Dave Nichols of Positively Doubtful Podcast, Podcasts, Dale, Steve, Sigmund, Jim, Grove, Desecrator, Patrick, Fussell, ProPanic, Amanda, Lipnack, la bibliotequetress, with an easy-to-pronounce name.

1:09:15 Thomas: Thank you guys so much for pledging, thank you for listening to the show, this has been Opening Arguments. Thanks again, Andrew, for taking us on a a wonderful legal journey. I'm glad it worked out in the end that I wasn't a moron. All

1:09:29 Andrew: I think you were prescient, right? You determined something that uh that you could've written that session of of Missouri's argument in the briefs. So, so, all

1:09:31 Thomas: Right. They would have thought whatever lawyer who wrote it had a stroke, but sure. Yeah. If it was me, I would have said, yeah, what's the legally thingy with the thing where... Yeah. All right, awesome. We'll see you next time for Opening Arguments.

1:09:59 Clip: This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time. This podcast is a production of Opening Arguments Media, LLC. All rights reserved.