OA18: You Be The Supreme Court, Part 3

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 number 18. How you doing, Andrew Torrez?

0:01:23 Andrew: I'm great, Thomas. How are you? Sincere question. Big news today.

0:01:25 Thomas: Well, since you asked, I am doing quite well because a man of incredibly good taste has just retweeted our own OA episode 13, Hillary Clinton's Damned Emails. And the reason he did so, this is Sam Harris retweet, crashed our site. Very exciting. Writing. The reason he did so is because Andrew did a fantastic job on that episode. And I'm really, really glad to see that it is being noticed by more people. So I just want to say, Andrew, congratulations on that. I think you can pretty much single-handedly accept all the praise for that.

0:02:05 Andrew: Know, I never single-handedly accept the praise and I think the show is where it is due to your hard work. And I also want to give a shout out to Caleb Lakes, who was the loyal listener who tweeted us at Sam. And as far as we can tell, that's how he He discovered the podcast and listened to us. So thank you, Caleb, very much. And if you're out there and you love opening arguments and want to shamelessly retweet us at prominent figures on Twitter, we will take that all day long.

0:02:15 Thomas: Oh, yeah. Yeah, Thank you very much. And thanks to any new listeners who might be listening because of Sam. I'm a big fan. I know Andrew's a big fan and it was just a, it was incredible, it was, it was really cool that that happened. I've been just over the moon all day, but get, the show must go on, Andrew.

0:02:47 Andrew: Yeah. Yeah, we've got work to do.

0:02:56 Thomas: So let's get over to our first segment.

0:02:59 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.

0:03:08 Thomas: Closed arguments! All right, could Bernie Sanders or Evan McMullin, for that matter, win the presidency? Well,

0:03:17 Andrew: Yeah, and this is a closed argument. The answer is no, not even close. Close. Two pieces, I'll link them in the show notes, that are making the rounds on Facebook and the like that I have seen. And I thought they both basically are of the same theme. And that theme is this. If the election is really, really close, which is to say, if Hillary Clinton is on a pace to win right around 270 electoral votes, then the strategy goes, if you could somehow get a third party candidate to win one state, right, which is harder than it sounds, but we'll get to that in a minute.

0:03:58 Thomas: But uh, Utah might be possible, maybe, right? Or or is that more internet misinformation? We'll see.

0:04:05 Andrew: Okay, let's tackle that right away. I mean, a? A third party candidate has now won a State since 1968. That was George Wallace running under the, uh American Independence Party, uh you know pro-racist Dixiecrat Party won, uh I think five southern States that year. So even where we have had very, very popular third party candidates in recent years, Gros Poro in 1992, and even where that popularity sort of waxes and wanes in different areas of the country, getting a 35 or greater percent plurality of the voting populace is a a really, really high, uh, barrier to, to, you know, threshold to cross. Um, and there,

0:04:06 Thomas: Okay. But I've heard a lot of rumblings about Evan McMullin, Utah, lots of support.

0:04:52 Andrew: Yeah, yeah. The polls show him in the twenties, uh, in Utah. Um, and, and what I would point out is that, um, the, the-, I think this applies to, uh., both Gary Johnson and Jill Stein in the general election. And I think it would also apply to Evan McMullin in the unique case of Utah. But I look back at the 1980 presidential election, and that had a moderate third-party candidate, John B. Anderson, running. Essentially, I mean, he was a Republican congressman running under the idea that Carter was a failed president, but Ronald Reagan was too conservative. If he represented that old sort of Rockefeller wing of the Republican Party.

0:05:37 Andrew: And he was consistently polling in the 19% to 20% range, and he wound up with 7% of the vote in 1980. And I think that there is pretty good evidence. Look, there are just not a lot of presidential elections, so you're not going to get a huge data set. But I think there is good reason to think that third-party support support is overstated in the early stages of an election and sort of trends downward over time. Certainly, if you look at the polling for Gary Johnson, right, you know, there was talk several months ago that he was going to hit the 15% threshold for participating in the debates. And instead, he went from 10, 11, 12 down to, you know, five, six, seven. And I think that that so I think when you poll people, particularly in Utah, in which Mormons seem to be very, very anti-Trump, but are also very, very anti Democrat, it's a it's good environment to get those numbers up. But it's it's going to be a real challenge to, you know, translate that into actual, you know, I mean, voting is a is a pain, right?

0:06:07 Thomas: Okay. Yeah.

0:06:49 Andrew: You know, you've got to go out, you got to stand in line, you're going to go into the the booth. And at the end of the day, you know, I think there is a substantial kind of, our listeners who are fans of third parties, I Think would say, you Know, it's a defeatist attitude. But or I think it is a correct description of how people do vote, which is to say, You know, there is some decay in the I'm throwing my vote away feeling.

0:07:13 Thomas: Yeah.

0:07:14 Andrew: So, So so

0:07:14 Thomas: So, but for the sake of argument and for the stake of this closed argument, there's no reason he can't. Let's say McMullin gets up to, I don't know, he shoots up 35-40 and wins Utah. Utah. It seems like the most likely third-party candidate to win a state in my mind, because I don't think the other third- party candidates are even close to what he has in Utah and any other state, are they?

0:07:19 Andrew: Yeah, right.

0:07:35 Andrew: That's correct. And the I should point out that the Bernie Sanders plan involves orchestrating widespread use of write in votes to get him to win Vermont, which is just I don't think I need to explain how ridiculous that is. And Vermont is one of the states where you have to declare as a formal write in candidate anyway. And I I think that deadline has passed and Bernie Sanders has no interest in this. I mean, it's just, you know, yeah, in in most

0:07:35 Thomas: Okay.

0:07:57 Thomas: Wait, is it too late for me? I didn't know I had to declare as a... Damn it. I was going to use my podcasting empire to get elected, but no, too late. I missed the deadline.

0:08:05 Andrew: States. Yeah, in most States in 34 out of out of the 50 states, you have to formally declare yourself as a write in candidate to be eligible. I actually just got my voter confirmation notice and sample ballot in the mail today. And on the inside cover, because Maryland is one of those 34 states, it has a list of about 50 or 75 people who are listed as, you know, authorized write-in candidates. And the effect of that is that if you were to orchestrate a write-In vote for, you now, Mickey Mouse or whatever, someone who's not on the authorized list.

0:08:47 Thomas: Suspect Harambe is going to get a lot of write-ins, So? Can somebody else register him on, on his behalf, or does he have to? I bet

0:08:49 Andrew: Yeah, yeah. Yeah, I, the idea of whether a gorilla is eligible to receive write-in votes is, I would have to look at the case law on that. I, yeah, at 35, I mean, you know, just that I would would have to.

0:09:03 Thomas: He wasn't born. Was he born in this country? That's going to be critical. Yeah, Do The Research. These are the key issues that we tackle. This is why Sam Harris retweets us. Well,

0:09:10 Andrew: Yeah. So anyway, I mean, to to to, you know, kind of summarize and bring this to a close, let's say the Bernie Sanders plan has is I mean it's just laughable. And when you read the article, I'm going to link it in the show notes, you will see there's a confusion about I mean the author doesn't seem to know the difference between the House of Representatives I mean, you know, it's just it's crazy. So let's stick with the McMullin plan, which was more correctly analyzed by the fine folks, some of whom are friends of mine over at FiveThirtyEight, in which they at least accurately described the process. And the process has to go something like this. Hillary Clinton has to win under 275 electoral votes, has

0:10:00 Thomas: You say that you just mean whoever the top? It, Like if theoretically Trump. But yeah, okay, just just making sure it didn't specifically need to be. Yeah. Yeah.

0:10:03 Andrew: Yeah, well, correct. Yes. Yeah. That's right. We do not want accusations of bias here.

0:10:11 Thomas: We aren't part of the official media cabal that's throwing the election. Sorry. Sorry, yeah, anyway, go on.

0:10:12 Andrew: Right. So You have to think that the leading candidate is on a pace to win between 270 and 275 electoral votes because Utah is six electoral votes. And so if you take Utah out of the leading candidates' projected totals, then you're left with no candidate receiving 270 electoral votes. You're left with 269 as the ceiling. Now, the scenario in which Hillary Clinton is on a pace to win Utah but not otherwise accumulate 270 electoral voters is really, really small. You can come up with math for it, but it's almost impossible to imagine. And so then you're basically saying, proceed from that analysis.

0:11:05 Andrew: You take it out. The net effect would be to throw the election to the House of Representatives, which is a phrase that you hear a lot. But the way in which this works, it's part of why I picked this topic, because I think there is actually a legal hook here beyond just sort of making fun of stupid websites, which is a noble calling, don't get me wrong. But the 12th Amendment to the Constitution describes how the election proceeds if the leading candidate does not receive 270 or more electoral votes. And the way that works is the top three electoral vote getters, which in this scenario would be Clinton, Trump and McMullin, are passed to the House of Representatives. But it's not just a straight vote of the House OF Representatives. What what the House does is each state forms a delegation with the number of their representatives in Congress. And then based on that delegation, the state votes among that delegation and then reports either a vote for one of those three candidates or an abstention, which is to say,

0:11:14 Thomas: Yeah, yeah, yeah. Okay, so

0:12:19 Andrew: You know, if you, yeah, yeah. Yeah, the only people, and remember this was passed after, you know, some crazy elections in the early 19th century where you had, you know, four and five multi-way candidates all winning electoral votes, the Whigs and all of that. I think it's the election of 1836, but I didn't look that up. I could be wrong. So the top three electoral vote getters become eligible. Nobody else is eligible. So yes, you You have to win a state. You have to be in that top

0:12:19 Thomas: When you say one of those three candidates, do they have to have won a state, or could it be anybody?

0:12:34 Thomas: Oh, right. Okay. Got it.

0:12:51 Andrew: Three. So they can't vote for Gary Johnson. They can't vot for Jill Stein. They can't only vote for Clinton, Trump, or McMullin in this situation. Then if the state delegation is deadlocked, they just report no vote. And it continues until a candidate gets 26 of the state delegations. And this This is one of the few provisions. I mean, we've talked about the the aspects in the law where, you know, it's it's discretionary or this is they are required by the Constitution to continue to meet and continue to ballot until they pick a president. This weird corollary in place, which is to say that the president under the 12th Amendment is decided by the House of Representatives divided up into state slates the way we've described, the vice president is decided among the top two finishers by the Senate, which will very, I don't want to say very likely, which there is a high probability will be in Democratic hands.

0:13:09 Thomas: Well,

0:13:58 Andrew: Uh, I think 70% is the latest estimate that I've seen. Um, but either way, the Senate is either going to vote, uh, in this scenario for Tim Kaine or for Mike Pence. Uh, they will not have access to, and I don't know that Evan McMullin, you know, he, he probably has an Admiral Stockdale type, uh you know fill-in for vice president. I mean, you you know, uh, but that person will not be on the ballot. Uh, they cannot vote for McMullin himself. Uh, and so if the Senate decides on a president, excuse me, on a vice president before the house of representatives decides on our president, then under the operation of the 12th amendment, the sitting vice president would become president. Uh. So, you know that they

0:14:45 Thomas: Now I got to ask, so why did you say they couldn't vote for McMullin? Like, again, Again, in this situation, we pretend McMullin won a state and he has some sort of VP that nobody knows about. The Senate can't vote for that VP?

0:14:59 Andrew: Can only pick among Among the top two.

0:15:00 Thomas: Oh, top two. I missed that. Okay, sorry.

0:15:02 Andrew: Yeah. Yeah, the House. It's weird that the House gets to pick among the top three. The Senate has to pick Among the Top Two.

0:15:04 Thomas: Yeah. But does this mean like in theory, let's say Trump for some reason wins because of the House of Representatives, you know, that they go with Trump. Can the Senate give him a Democrat as a VP? Wow, that's awesome.

0:15:20 Andrew: Yes. Yes, and indeed they would. And that really gets to, you know, the fundamental political weakness that underlies this sort of pie in the sky scenario, which is to say that partisanship is at an all-time high as we are recording this on October 17th, which I think is the very low point of the Donald Trump campaign. I mean, it's after, you know, a week and a half of just, you know, well, to date, it is the lowest point, right?

0:15:46 Thomas: Them, low, point. Okay. We'll see, give it another week. It'll be, oh, sure. Okay,

0:15:54 Andrew: And he is just getting hammered and, you know, he has maintained three-quarters of his endorsement in the Senate and in the House of Representatives. And so, you know, I see both of these articles kind of have this blithe hand-waving that says, well, you know, Republicans aren't too happy about Trump, so it would be really easy to convince them to go over to, you Know, McMullin or, you Know, Bernie Sanders or, You know, Harambee. And, and it just that, that seems to be completely at odds with political reality, right? If, if this scenario were to happen, where there is a contested representative, a contested election, there is, I have zero doubts that every vote that would be cast would be cast in a partisan way. And we shouldn't expect that any differently.

0:15:54 Thomas: Lowest to date, yeah, yeah. Yeah.

0:16:18 Thomas: Yeah.

0:16:48 Thomas: In this day and age.

0:16:48 Andrew: Endeavor, you know, number one, depends upon an election being much closer than the polls suggest this election. Number two, depends upon either an impossible to coordinate third party write-in or getting a vanity third party candidate over a 35 percent threshold, which seems kind of vanishingly unlikely, persuading people to give up their partisan interests and beating the clock. Block, because the House of Representatives has that really confusing slate issue. And the Senate has just an up or down vote, right? The Senate is going to confirm either Kaine or Pence immediately. The ultimate outcome of of this sort of plan is, I think, to make Donald Trump president.

Our listeners may have differing opinions on whether that's a desirable, a desirable goal or not. I would say this to conclude the segment. If this crazy, unlikely plan happened, right, if Hillary Clinton had 269 electoral votes, And Donald Trump had 263, right, that would get you to 538. So, Clinton, 269, Trump, 263, McMullin, six, Right? If that played out and Trump were and Trump and let's say Trump loses the popular vote as well, think you would just see a replay of the 2000 election. In other words, if if he wins out of the House of Representatives, Trump is the president and,

0:17:42 Thomas: Wow.

0:18:17 Andrew: You know, Cain, let's say, comes out of the Senate, is the vice president. Um, I do not think that there would be any lingering sense of illegitimacy. There would be a sense of, boy, this is a weird process. But, you know, in our history as a country, um, national temperament has been basically we follow the process and that's it. And it's legitimate at the end of that. That, um, I don't think you would have a breakdown in the same way that you didn't really have a break. I mean, there was there was all sorts of talk, you might, uh, you might not remember it, but um, you know, there was

0:18:17 Thomas: No,

0:18:48 Andrew: Talk in

0:18:48 Thomas: I do I remember being Kind of confused as to how easily it all seemed to just be President Bush in 2000. was like it seemed like it was going to be a big thing and everyone was going to resist, and then it was just like, nope, done, done deal.

0:18:48 Andrew: Yeah. Yeah. And there was there was talked that Al Gore was going to set up a shadow government in exile, and I, you know, and and that's just not the way our elections, uh, take place. You Trump is a very different kind of candidate, so I don't want to predict the other way. But fortunately, I can't come up with a scenario in which a weird process is used to make Hillary Clinton president. So we wouldn't have to face that issue of, you know, correct.

0:19:03 Thomas: Yeah. Yeah.

0:19:25 Thomas: And, Like I said, entirely, entirely unlikely that somehow she's not going to have the, the electoral votes, but I guess sounds like it's possible, but even, even in the weirdest scenario, it's still like virtually guaranteed that it won't be anyone other than Hillary or Trump is what you're saying. Like, there's pretty much no chance. Okay. Well, there you go.

0:19:48 Thomas: We better get over to our main topic for the day, and that is Harambe's political agenda, is it constitutional or not? Andrew, go ahead. Oh, no, oh, sorry, different, oh, that's next episode. Okay, sorry, I've got the episodes crossed, sorry, we're actually, first we're gonna do, you you be the Supreme Court three. This And isthe petitioner's response of first the petitioner, know, made their case initially, initially and then the state responded. And now we get to hear the petitioner respond again to that.

0:19:46 Andrew: Correct. Yeah. The, right?

0:20:21 Andrew: This is their closing reply brief. And the reason you do this is because the petitioner bears the burden of proof on appeal. So if you recall, when we completed UB the Supreme Court II, we were left with the state of Missouri DNR, Department of Natural Resources, having two arguments to defend its policies. And to take a little bit of a step back, this case, which is pending before the Supreme Court right now, so we get to track along in real time, involves a program in Missouri that recycles used tires into rubber mulch and provides a limited number of grants for schools and playgrounds that you apply for the grant. If you're approved, you get some money to resurface your playground with the recycled rubber mulCH, which is safer. It's recycling. It's all that good stuff.

0:20:28 Thomas: And if there are any new listeners who haven't heard this, that's opening arguments 14 and 16. Now we're on 18. So there you have it. And

0:21:23 Andrew: Mm-hmm. Uh, so the missouridnr had, as part of its policy, a blanket exclusion on on religious institutions that also ran daycares or children's centers out of a concern for the Establishment Clause. That is, the idea that if they were able to get access to public funds to subsidize their playgrounds, that is essentially freeing up, on a dollar-for-dollar basis, money to be spent on proselytizing and other church activities. And so the idea was to kind of stay out of that minefield. We're just going to say that this program is open to secular institutions, not to religious institutions.

0:22:14 Andrew: Even though the grant itself would not be a direct funding of of religion by the government, it would be an indirect benefit. And so the question is whether that application is valid under the Constitution.

0:22:30 Thomas: I was pretty convinced by the state's response in part two. I was, had thought that it made sense to, I mean, I didn't have a huge problem with just giving these playgrounds on church grounds this mulch tires, but it sounds like once the state explained it in their response, it made sense that the initial decision policy-wise to exclude churches was fine, it sounds Like. And that's where the argument would have been made in my mind as to whether or not this was something they wanted to fund. They decided no, and I was pretty satisfied. But now I'm curious if I'm going to be reconvinced again.

0:23:09 Andrew: So, So let's boil down. This is an oversimplification of the state's arguments, but I think it's a fair summary. You tell me Argument one that the state made was that the First Amendment does not require the state to subsidize religious activity, and that in particular, because not everybody is gaining the benefit of this subsidy program, that means that it does not harm your First Amendment rights to say that churches aren't eligible. And. And the primary case that we discussed there was Locke versus Davey, which was the Washington state case that said if provided scholarships to various college students for in-state tuition, but denied the scholarship if you were practicing devotional, if you Were studying devotional theology.

And the Supreme Court said that was a perfectly rational exclusion from the scholarship on pretty similar grounds that we have here, which is to say the state does not want to give dollar for dollar something that looks like it is establishing a religion. And then the second major argument that the state made was with so that was the First Amendment argument. It's perfectly OK, not a free exercise violation. And then the second argument was it's also not an equal protection violation. And here, first, as as you did in the opening episode, the state pointed out the sort of seeming confusion in the the church petitioners brief between free exercise and equal protection cases. Um,

0:23:35 Thomas: Hmm. Yeah.

0:24:06 Thomas: I

0:24:46 Andrew: So you correctly noted that, uh, and the state called them out on that. And then the state said with respect to the equal protection clause, um, being religious isn't a suspect class, right? Choosing among religions or prioritizing the religious over the non-religious, uh. You know, may invoke the kinds of criticisms that strict scrutiny is meant to protect. But, right.

0:24:47 Thomas: Was, I was very brilliantly confused. Right, but they said Religion has a pretty good, you know, influence on our politics and policies already. It's not like just being in the class of religious is some sort of protected thing. Let's

0:25:21 Andrew: And that is more than just a practical argument. The case that is used to justify heightened scrutiny is a case called City of Cleburne versus Cleburna Living Center. And basically it says, along with a much earlier case, it's footnote four of a case called Caroline Products. So to the extent that I know there are some lawyers that listen to this podcast, there's your law geekery legal history shout out. But essentially the history of heightened scrutiny under the Equal Protection Clause says where you have historically disadvantaged minorities that don't have full access to the political process, it makes sense to require that laws undergo a higher level of scrutiny to make sure that we're not disadvantaging a traditionally discriminated against class of individuals.

0:26:18 Andrew: And the state's brief argued that class of being religious didn't fall into that history, and so therefore shouldn't qualify as historically discriminated-against minority. So with that in mind, now, uh, Trinity Lutheran Church gets to fight back and let's take a look at their brief, um,

0:26:39 Thomas: See what they got. They're gonna give it their best shot, I assume, right?

0:26:42 Andrew: Yeah, so, uh, they're going to break down in the same way, which is argument one is going to be dedicated to the free exercise, First Amendment, uh, claim. And argument two is going to be devoted to their equal protection claim. So argued that a restriction must amount to coercion or punishment or criminal penalty in order to trigger the free exercise clause of 1A. And this was the subcomponent. We didn't talk about it in the overview, but the sub component of the state's argument that basically said, we don't have to subsidize your religious beliefs. Right. If we're depriving you of the right to practice your religion, that's fine. But here, this is just a voluntary program for resurfacing playgrounds and we don'T have to give you access to that. Yeah.

0:27:34 Thomas: Oh.

0:27:34 Andrew: First argument that they make under Section A is trying to distinguish the Locke versus Davey case. Right. And this is really, you know, as as we've seen going back and forth, in my view, this is where the ballgame rests, that you've got a case that looks really, really similar on the facts. We've gone back and forth. Trinity tried to distinguish it in their opening brief. It left us scratching our heads a little bit. The state of Missouri came back in their opposition, emphasized it, made it clear. And now Trinity has to go and deal with that. And so what do they say? Here's their argument.

0:28:12 Andrew: They say the notion that in order to trigger the free exercise clause only applies when the law has a coercive effect or imposes a criminal penalty, this is page two of the reply brief, was rejected 40 years ago by this case, by this court in McDaniel v. Paty, which is 435 U.S. 618. So let's take a look at that case and see if they're correct.

0:28:12 Thomas: So Just To make sure I've got everything straight with the moose, Trinity is claiming that even though the state said, um, this is totally consistent with Lock v. Davey, uh, Trinity's now claiming there's another other case where they threw that standard out, or, okay.

0:28:36 Andrew: And exactly.

0:28:52 Andrew: They're saying this McDaniel v. Paty case makes it clear that you can indeed have a free exercise clause violation, even when it's a voluntary benefit that has No coercive effect. Effect.

0:29:04 Thomas: Is It, am I crazy to wonder why this is only coming up now for Trinity, when they, when Their First, okay. When They proactively In Their first, in their petition, they already were like, here we know why this isn't the same as this, and it had nothing to do with what you're about to say, it sounds like, but I could be wrong, okay.

0:29:12 Andrew: Yeah, you're not crazy to think of that. And in fact, yeah.

0:29:26 Andrew: And so I'm going to do a little bit more editorializing here because this is the end of the road, right? The state is not going to get another response. Andso for the first two briefs, I kind of left it out there. And here I want to help steer it along a little bit because that's what actual Supreme Court clerks would be be doing. So they're going to look, okay, first response, let's go look at McDaniel versus McDaniel v. Paty. The very first thing you do as a Supreme Court clerk, and I say this having not clerked for the United States Supreme Court, but having clerked for the Maryland State Supreme Court which is called the Maryland Court of Appeals way back in my formative year, having just gotten out of law law school, the first thing you would do is pull every case that is cited in both sides briefs, And right? Because, you know, we've talked about how jurisprudence is on the notion of case law.

0:29:26 Thomas: Oh. Good. Good, oh.

0:30:20 Andrew: It's based on this ability to track the meaning of words over time and relate the current facts to previous cases and to either distinguish them, if you don't like how that case turned out, or to say that the facts are very close and that it applies. So you pull the McDaniel case, and what is that about? That was about a law in Tennessee that prohibited ministers of the gospel or priests of any denomination from serving as delegates to the state's constitutional convention. So the state had called a constitutional convention, this happens from time to time, in order to revisit portions of the state constitution. And there was this law that said, if you're a minister, you can't go, you can't participate in the process.

0:31:10 Andrew: And the Supreme Court said struck down that prohibition said, no, no, you cannot say that people have to choose between being a priest and being able to participate in the political process. And intriguingly, the trial court in Locke versus Davey, not Only referenced, but case was the primary case being relied upon by the petitioner in that case, Davey, to try and overturn the Washington state ban on scholarships. And so here's what the trial court said. Neither does Davies' heavy reliance on McDaniel v. McDaniel v. Paty advance his claim. In McDaniel, the Supreme Court struck down a portion of the Tennessee Constitution, we talked about already, relying on Sherbert v. Verner. The McDaniel court held that Tennessee could not condition the petitioner's right to the free exercise of his religion on the surrender of his right to seek office. Like each of his other constitutional arguments, Davies' reliance on McDaniel mistakenly presumes that he has a right to have Washington fund his religious instruction.

0:31:30 Thomas: They reference it, well,

0:32:16 Andrew: He does not, and McDaniel in no way leads to the opposite conclusion. So I quote that there because I think that's fairly analogous to what the Supreme Court might claim with respect to this citation here, which is McDaniel v. McDaniel v. Paty says you may not condition one right on refusing to exercise your religious rights. But, you know, just like you don't have a right to fund your religious instruction, you don'T have a RIGHT to have the state fund your resurfacing of your playground. So there's no conditioning, there's NO coercion, and it doesn't lead to the opposite conclusion. I don't know how you feel about that, right.

0:32:54 Thomas: Yeah, it makes sense That being able to participate in a basic kind of part of the political process is a lot different as a right than it is to get access to this very limited, you state program or whatever, that's going to give you some chopped up rubber in your playground, right?

0:33:10 Andrew: And so and remember that this is this is being deployed in support of the argument that the free exercise clause applies in in situations beyond having a coercive effect. Effect. And I think it is a fair reading of the McDaniel v. McDaniel v. Paty case to say, well, there seems to be a pretty high coercive effect here too, right? Not everybody wants to be an state delegate to the Constitutional Convention, but you have a right to do that. You have a Right to Participate in the process. And if you do want to do, that statute forced you to choose between being able to participate in the political process and being able to be a minister.

So it doesn't strike me as a very apt refutation of the state's core argument. The next argument is going to require us to go back and actually buttress the state case from the previous episode. And we skipped over this because in my view, this case is not quite as strong as the Locke v. Davey case, but it nevertheless falls into the same pattern. It is a case called Lyng, L-Y-N-G, versus Northwest Indian Cemetery Protective Association, and it involved the state of Oregon constructing a road and logging, gang cutting down trees in a sacred forest. That was the site of some religious, Native American religious practices. This is a 1988 case, so it is pre-Employment Division v.

0:33:56 Thomas: Yeah.

0:34:46 Andrew: Smith, or peyote case, but Scalia is still on the court, and it comes out the way you might expect it to come out, which is to say that the court decided that it was perfectly reasonable for the state to pave the road and cut down the timber. So that was part of the argument that Missouri used in its prior brief. We skipped over it because it's, you know, it's repetitive of the Locke v. Davey heavily on Lyng, but misreads Lyng. And this is page three. They say, Lyng stated that it is unconstitutional to penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens, and cited Sherbert v. Verner as an example of governmental action prohibited by the Free Exercise Clause because conditioning eligibility for government benefits on religious status has the, quote, tendency to coerce individuals into acting contrary to their religious beliefs. And they cite back to Lyng. So we're going to do the same trick again. We're going bring up the Lyng opinion. We'll go to the page, pages 449 to 450.

0:36:04 Andrew: You can do this if you're playing along at home. It's linked in the show notes. And we're gonna read Lyng and see who's got the better of the argument.

0:36:10 Thomas: Because that's, I, I'm not really following that logic. So, so I'm curious to Hear.

0:36:14 Andrew: Yeah, so the So the question, right, so the question is, the state has said Lyng is really, really similar to this case. Lutheran has said, no, no. You are misreading it. And let me be clear, after that paragraph in the concluding section on page four, this is the first full paragraph, the last sentence says, the DNR, that is Missouri, never distinguishes McDaniel or Sherbert, And it's substantially misreads link. And so, you know, we've talked about how lawyers kind of kick around, you know, insults and criticism, saying somebody substantially misreads an opinion is a strong, strong criticism. It is one.

0:36:46 Thomas: Yeah.

0:36:54 Andrew: Even for me, right?

0:36:54 Thomas: You usually challenge them to a duel after that, I think, right? Yeah.

0:36:56 Andrew: Right. Yeah. You know, even, even for me and I, you know, have occasionally been guilty of some sarcasm in my legal briefs, saying somebody is substantially misread is a pretty high threshold. Let's see if they have. So here's what Lyng says on the pages, 449 to 450. And remember, the respondent here is talking about as a Native American spiritualist group who wants to protect the sacred forest from Oregon's decision to build a road and cut down the trees. Respondents insist, nonetheless, that the courts below properly relied on a factual inquiry into the degree to which the Indian spiritual practices would become ineffectual if the road were built. They rely on several cases in which this court has sustained free exercise challenges to government programs that interfered with the individual's ability to practice their religion, and they cite a bunch of cases, including Sherbert.

0:37:47 Andrew: Uh, they say, even apart from the inconsistency between different case and respondents reading of these cases, their interpretation will not withstand analysis. Of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment. Amendment. Thus, for example, ineligibility for unemployment benefits based solely on a refusal to violate the Sabbath has been analogized to a fine imposed on Sabbath worship. That's the Sherbert case. This does not and cannot imply that the incidental benefits 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, require government to bring forward a compelling justification for its otherwise lawful actions. The crucial word in the constitutional text is prohibit, for the free exercise clause is written in terms of what the government cannot do to the individual, not in terms Of what the individual can exact from the government. So how does that strike you?

0:38:46 Thomas: Case just said seems to strongly support the state's case, and so it would be weird to imagine that somehow Trinity is right and it actually doesn't support the State's case.

0:38:57 Andrew: Yeah, I think, in fact, I would go so far as to say, remember that the paragraph that said, "Look, you're misreading Lyng." Indeed, Lyng stated that it is unconstitutional to, quote, "penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by others." And Lyng cites favorably to Sherbert. So, you know, why are you citing Lyng? You've got to be misreading it. But then, when we go and we actually read Lyng in context, they say, "Well, it's true that, although we have held this, and although we have the Sherbert case, this case can't be squared with that, because this does not and cannot imply that the effects of government programs that make it more difficult to practice your religious beliefs can require government to put forward a compelling justification for its otherwise lawful actions." The key word is prohibit, and, you know, and all that stuff at the end. So,

0:39:47 Thomas: Yeah. Is this where we get to say, no, no it is you who have substantially misread Lyng. And then there's a big, do we fight now or how does this work?

0:39:56 Andrew: Yes. Yes, we do.

0:39:58 Thomas: There should be a glove involved. Like I slap somebody with it, a lawyer glove.

0:40:02 Andrew: And that's the end of 1A. So 1A says you should look at this McDaniel case and you've misread Lyng. And I think our evaluation is the McDaniel case was already well litigated in the Locke case itself and does not compel an opposite result. And no, doesn't look like they've misread Lyng. I'm going to skip 1B because you have to take my word for it that it's a terrible argument. It just is. It's not fair. We're already beating up on the Alliance Defending Freedom.

0:40:04 Thomas: All right.

0:40:33 Thomas: Yeah.

0:40:34 Andrew: So we're going to skip 1B and we're gonna go to 1C, which is, again, I think the crucial step in this brief in which they have to distinguish Locke v. Davey.

0:40:44 Thomas: Yeah.

0:40:55 Andrew: And let's remember that in the state's brief, what they said was, "A state's refusal to support an aspiring pastor's religious education surely exerts a greater pressure on the free exercise clause than does a state refusal to subsidize a church daycare secular capital improvement project," right? Right. This was the- your efforts to distinguish Locke v. Davey are really kind of an own goal. You know, you're saying it's- it's different. It's different, it's different. Yeah, of course it is. It's It is different. In Locke v. Davey, the Supreme Court said it was perfectly OK to discriminate against studying worshipful theology. Right. Like, that's the core of your religious belief.

0:41:36 Andrew: Right here. What we're saying is it's OK to say, you know, know, you can't be a church trying to resurface your playground, right? Which is exactly,

0:41:42 Thomas: This is Where they kind of messed up by saying, in one part of the argument, if I have it right, in one part of the response, they said, "Oh, well, this playground stuff, it's not like that's actually our religion or anything like that," and then later on they said, "Look, by doing this you're really- by not giving us this playground stuff, you are totally infringing on our right to religion." Is that right? And it kind of- They Kind Of contradicted themselves.

0:42:04 Andrew: That is exactly right. Yeah, no, that, that is exactly Right. And that's the argument to keep in the back of your mind, because it's the Argument that Supreme Court clerks are using when they are evaluating these arguments. So gives four arguments here under 1C, starting on page eight. The first argument, and this is written really, really weirdly, and I had to read this several times before I could figure it out. It says, yeah, It says, "The religious status discrimination present in this case distinguishes it from Locke." So essentially what they're saying is religious status discrimination not present in Locke because Davy was not denied a scholarship based on who he was or what he believed. Rather, he was denied a fellowship based on his intended course of study. So the exclusion in Locke was on only one use of the scholarship, pursuing a devotional degree in theology. Otherwise, the program went, quote, "a long way towards including religion in its benefits," end of quote, and students could use the scholarships at religious schools, quote, "pervasively religious schools," and could even take devotional theology courses as part of their education.

0:42:30 Thomas: Great. I Have no chance. Does

0:43:17 Andrew: The program only prohibited using the scholarship for pastoral training. Then they say, in contrast, the Scrap Tires program's prohibition is a broad per se exclusion of all religion. That program does not include religion in its benefits at all. Instead, the DNR blatantly discriminates on the basis of religious status. That's it, by the way. That is, those four paragraphs are the, that's all of the argument from the brief. There are no citations to any cases other than, you know, kind of offhanded if this would be like Sherbert, you knows, and McDaniel and others.

0:43:52 Thomas: Translating that into typical lawyer, does that- is that is that abnormal, is that like, uh, uh, we're gonna just kind of try to give an argument here, but we don't really believe it ourselves.

0:44:03 Andrew: Yeah, it's abnormal in the the sense that don't look, I don't want to suggest that every time you distinguish a case, you need a case holding the other way on different facts in order to make that argument. I have I have made lots and lots of arguments and distinguished lots and lots of cases just sort of on its facts, even if there's not a case going the other the way. Because, you know, you remember from our standing discussion, the court is only going to rule in a case if that case comes before it, right? And so saying, hey, this is a relevant fact, and maybe we're the first case that has this relevant fact, but you've got to take that into consideration. So it's not prohibited. That being said, if this is your first argument out of the gate, and you don't have any other cases, Makes it a hard- it's much more of an uphill, in my view, uh, and so they say, uh, the difference here is Locke did not have a categorical prohibition on religious participation And

0:44:04 Thomas: Right. Okay. Yeah. It was just this one particular field of study or something. And then this one, I

0:45:04 Andrew: Right. Yeah. It was Just The devotional theology, which- we're now being so charitable to Trinity that we're rewriting their brief for them. But I think the argument is, look, you could go to a religious school under this scholarship, a Jesuit academy, let's say, and you could study philosophy. Right. And, you know, I know you've taken some philosophy classes in college. So have I. Right. Like, so religious questions come up in philosophy class. So they're saying, you know, it is not- not a categorical prohibition on all religious participation. And so this seems much more strong. This has not- so now I'm going to editorialize a little bit because this is.

0:45:50 Thomas: Please, because I mean, I get what they're saying, you know, there that, I mean it is a difference, but why is that not a compelling difference?

0:45:51 Andrew: Yeah. Yeah. Yeah. And this is there's a there's a phrase that lawyers use sometimes, which is this is a distinction without a difference. And I would use that at oral argument on behalf of the state. I would say this is the classic case of a distinction without the difference. Without a difference, because you're trying to figure out is how significant is the establishment is the free exercise exercise burden here, right? How much are we interfering with people's ability to exercise their religion? And they're saying it's much more so because you're categorically excluding people. But the difference is that when you talk about being in school, you're talking about the actual exchange of ideas that is central to the religion itself, right. We were talking about systematic theology.

0:46:03 Thomas: Oh, okay.

0:46:51 Andrew: We were talking about whether they're going to be able to, argue back and forth about their religious beliefs and then put those religious beliefs into practice as a pastor. Here, we're talking about a program that involves mulching up tires. And so the idea that, you know—yes, it might categorically exclude churches from participating, but that prohibition has zero effect on what that church is going to teach, you know, in its, you know, Sunday sermons and the like, right? Like, there's just zero connection between, you know, the actual exercise of the religion and the so-called blanket prohibition. So I don't find this to be a very persuasive, yeah,

0:47:37 Thomas: So it's a bit of a distraction. It's kind of like, oh, this is a, this has a huge difference here, but it's not a difference that makes any difference. It's Kind of a difference, less difference, as you've, uh, you've said with your distinction without a difference

0:47:46 Andrew: Yeah. Right. So that's the end of argument one. So argument two, we're going to skip because it is very, very technical. Take my word for it. If listeners read it and come to a different conclusion, feel free to email us at openargumentsatgmail.com. But I think it would just make Trinity look bad and would be very, very confusing.

0:48:11 Thomas: We're Trying to make them look good.

0:48:13 Andrew: Yeah, so skip two, go to number three. That says, religious status discrimination is unconstitutional regardless of whether it flows from a credible connection to a Blaine Amendment. And you may remember this discussion from the first two episodes. The Blaine Amendments were anti-Catholic amendments that passed in a bunch of states that were the sole product of bigotry. I mean, kind of the Donald Trumps of their time being worried about Catholic immigrants from Europe washing up on our seas and taking over state legislatures. And so a number of states passed these so-called Blaine amendments after James G. Blaine. And they really are, when you look at history, they're not motivated by a desire for, secular separation of church and state. They were really just anti-Catholic bigotry. Yeah.

0:49:08 Thomas: Just Discriminatory. All.

0:49:10 Andrew: And so argument number three, I'm going number three does two things. So number one, it says you can have animus towards religion without being the product of the Blaine Amendment. I think they're probably right on that, so I don't think it's important to spend any time on that. And number two, they incorporate some of the amicus briefs that were filed in this case that says, yes, Missouri's constitutional provisions on that preclude spending government money on religious instruction do indeed have a connection to Blaine amendments. And this is something that really have to dig into all of the amicus briefs. Remember, amicus briefs are unrelated parties.

0:49:50 Thomas: They're filing it kind of just to say, hey, we also think these things about this case, maybe make different arguments than the Uh, the petitioner. Well,

0:49:56 Andrew: And let me tell you, there were approximately 25 amicus briefs filed in this case by, let me give you a quick sampling here, World Vision, which is a the Christian Charity, by the Union of Orthodox Jewish Congregations of America, by the American Jewish Committee, by The Beckett Fund for Religious Liberty, by the Bronx Household of Faith, by the Institute for Justice, by the Council.

0:50:18 Thomas: I feel like we could do this new Patreon goal: file an amicus brief.

0:50:22 Andrew: Yes, yes, we're going to put that up. That's a that'll be a stretch goal before we hit crazy billionaire money. By the General Council of the Assemblies of God, by by the Cato Institute, by Wall Builders. That's David Barton's organization designed to make up stuff about history. And so I'm going to skip, but you see there are a number of religious, political, and other interest groups that all wanted to weigh in on this topic. And those groups, some of them went into in their briefs because they're only concerned about the court's ruling, Like they don't have any actual things at stake here. They're not going to get any money. They just care about the principle of the thing.

So they were able to to go into more depth on some of the other issues. And one of the things they did was look at the history of Blaine amendments and the history of the Missouri Constitution as respect to Blaine amendments. And I will say again, you know, I've read through most of these amicus briefs because that's just the kind of work I do for this podcast. I think that it's a non-trivial argument. So I want to give them the benefit of the doubt here on sub-point three in distinguishing this case, it's not clear to have a religious animus that you have to be connected to a Blaine Amendment, and it's not clear that the neutrally phrased

0:50:28 Thomas: Yeah, yeah.

0:51:00 Thomas: Well,

0:51:49 Andrew: The Missouri Constitution that forbids spending money, the government allocating money to religious groups, is totally unconnected to the Blaine Amendment. There's I think a valid argument there.

0:52:00 Thomas: When you keep saying connected to Blaine Amendments, do don't you don't mean literally connected in some way, you just mean like legally similar or legally okay, my question is, why can't you just look at the merits of that amendment, why legally speaking it has to be linked to to a Blaine Amendment, and then that makes a difference. I don't get why they can't just look out the individual merits of it.

0:52:23 Andrew: Well, I think that is a much better Argument. Right. So, yeah, remember that the Blaine Amendment argument came about in Trinity's opening brief because that's a shorthand. In other words, the fact that something is connected to an obvious Blaine Amendment, like, is a prima facie case that it is intended to be discriminatory. And I think that Trinity has sort of confused that language and used it to mean that somehow that is the applicable test of whether there's discrimination. And that's why I think it's kind of a rabbit hole. And I'm happy to grant this argument number three, because I don't think in the end it's really dispositive of whether the Locke v. Davey test applies. Right. The question is not how did Missouri come to get its provision in its constitution prohibiting spending public funds on religious organizations. The question is whether that provision means that the DNR's application here is constitutional. Yeah.

0:52:25 Thomas: Okay. Mm-hmm.

0:53:31 Thomas: Yeah, makes, makes sense.

0:53:33 Andrew: So a bit of a sidetrack, but I think I think it was good to go down that and figure that that out. Get, so that was argument number three, which I think our conclusion was technically correct, but probably not dispositive. And Now argument four, this is the last one, which is religious status discrimination is unconstitutional, even in a merit-based government benefit program. And know immediately you might look at this and go, well, gosh, now, Now, yeah, you've gotten to the point, right, which is to say the the limited availability argument was at the core of what the state of Missouri was arguing in its brief. Why would you stick this dead last? And I think the reason why you would put this dead list is because you don't have a great response to it now.

0:53:33 Thomas: Yeah.

0:53:58 Thomas: Isn't this argument number one? Yeah. Yeah.

0:54:23 Thomas: You're Just throwing

0:54:23 Andrew: Now, yeah, so so here's here's what they say. There's the whole bunch of introduction, which has no citations and it's just rhetoric. And then on page 15, they say, moreover, this court has rejected the argument that scarce resources justify discrimination. In Rosenberger, the rector and visitors of the University of Virginia case that will link in the show notes, 1995 decision. Decision, the court held that the government cannot justify viewpoint discrimination among private speakers on the economic fact of scarcity, okay? The court pointed out that it is incumbent on the state, of course, to ration or allocate the scarce resources on some acceptable neutral principle, but nothing in our prior case law indicated that scarcity would give the state the right to exercise viewpoint discrimination that is otherwise impermissible, end of quote. Quote, the same is true here. And that's

0:54:23 Thomas: Everything you can at it? Okay.

0:55:14 Thomas: Yeah.

0:55:14 Andrew: The end, right? And again, so it is, we got this one case, the same istruehere, and then here's their follow-up. It is only two sentences long, so I will read it. The point is not whether the scrap tire program is one of general or limited availability, as all government programs are, or contains discretion in the selection process, period. Because Trinity Lutheran met all the secular scoring requirements of the program, It was entitled to participate without being discriminated against because of its religious status, period. End of section. So I don't know about you. When I read that, I would think, boy, this Rosenberger case better be really, really good.

0:55:51 Thomas: Because that just sounds like the initial that sounds like it could have been the initial filing, right? Like, just here's what's wrong, period. Like, there's not a lot in it, and it it sounds very basic to the case. You know, it sounds like, yeah, it's just odd.

0:56:04 Andrew: Yeah. And I would point out that the parenthetical that I read, and I tried to read it as non-sarcastically as possible, my apologies if I failed, but not a question of whether it's general or limited availability, as all government programs are. Well, like, that's not true. Right. And in fact, I mean, the core of Missouri's argument is the difference between something that is available to everybody and something that has only available on a discretionary basis. Right? Like, if, if you said we will not let religious individuals participate in, you know, their Gideon v. Wainwright right to have a government-appointed lawyer if you're charged with a crime, like, that would very, very clearly violate the First Amendment.

0:56:49 Andrew: Right, because you have a constitutional right to a lawyer would fall under the the Lyng case that we talked about before, where they are conditioning one right on you abandoning the other one. So sort of blithely saying all programs are of limited availability, I think I know what they mean there. Right? Like, I think this is a sort of weird libertarian kind of argument that says the state doesn't have infinite resources.

0:56:49 Thomas: Right, right. Yeah. Yeah.

0:57:14 Andrew: But in practicality, there's no cap. Gideon versus Wainwright says the government is required to appoint a lawyer for you if you are charged with a crime, and it's no excuse to say we can't afford that.

0:57:14 Thomas: I was thinking that too. We're out of lawyers. There's no Andrew Torrez. We need Andrew.

0:57:34 Andrew: You have once again imagined a horrendous dystopia in which we are out of lawyers, I shudder at the thought.

0:57:34 Thomas: Oh no.

0:57:44 Andrew: Fortunately, there's a never-ending pipeline of lawyers that keeps this country what it is.

0:57:44 Thomas: Yeah, yeah. I feel like we're contributing to that pipeline. Playing

0:57:51 Andrew: I sure hope so, so what is this Rosenberger case? It is a classic mid-90s free exercise case, which is to say, If I tell you that it is a 5-4 decision, and it is, you will know that the majority is the conservative Rehnquist, Kennedy, O'Connor, and Scalia's two votes, Scalia and Clarence Thomas. And minority is the four liberals on the court, John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. What happened in that case? The University of Virginia, and again, I will link Rosenberger, the initially they they made a decision to deny a student organization that wanted to disseminate the wide awake Christian apologetics magazine. I don't know. Apologetics is really even the wrong phrase. It is a an evangelical magazine. It says you need to go out and save the lost. Have you seen Wide Awake?

0:58:10 Thomas: No Yeah.

0:58:47 Andrew: I think it may be more popular out here on the East Coast. It's not super popular anywhere, but I have seen it. I have had a copy. It is a little pamphlet sort of thrust into my hands. And so the University of Virginia initially said, no, we're not going to let you have a student club that disseminates this pamphlet because it is very clearly just religious proselytizing. We are a public university and, you know, we are going to take a stand against that. We don't want public university funds and taxpayer dollars going to, you now, spread the good news of Jesus. Us. And I have to tell you again, obviously, I think that this was coming at a time in which in which Scalia's influence on the conservative activist majority on the Supreme Court were reshaping constitutional rights. And so so the Supreme court said, no, that's a violation of the free exercise clause, free exercise laws, mind you, not the establishment clause, which is is a very weird reading, particularly post-Smith, where almost nobody gets any free exercise rights.

0:58:58 Thomas: Yeah.

0:59:53 Andrew: The key in the opinion is that notion of viewpoint discrimination. And so without kind of going through all of the history, the sort of contentious minority opinion. Basically, what the Supreme Court said was, if you're going to have different religious clubs on campus, it would be discriminating on the basis of their viewpoint to say, look, we could have a Buddhist club, we can have an atheist club, but we're not going to have a fundamentalist Christian club that is out there disseminating this wide awake magazine.

1:00:28 Andrew: And and so, yeah, look, I'm trying to give the best spin on it as as as possible, because I mean, the counter argument would be, you know, this is not a club engaged in, you know, sort of philosophical debates and going back and forth. They were reimbursing the producers of this wide awake magazine, you know, so basically they were paying the bills out of their student club funding.

1:00:27 Thomas: That kind of makes sense. To me. Oh, all right, well, that's that's a little different.

1:00:52 Andrew: Yeah. But look, like, nevertheless, if you're going to defend the decision and if you were the state of Missouri and or if you are the Supreme Court reading this case, do not need to say, oh, gosh, well, obviously we were wrong in Rosenberger. You can say, hey, look, the distinction is that case was about viewpoint discrimination, was about saying some clubs could, you know, with religious content or a religious content, or anti religious content could meet and organize and spend money and bring speakers and print leaflets and stuff on campus. But this conservative Christian evangelical club couldn't. So, you know, that's really what we're talking about here.

And by the way, that is, I think, how that opinion is interpreted and applied today, you Know, as we've hopefully moved past sort of the apex of the most conservative, you know, Scalia dominated court to, you a court that is trending back towards the middle and maybe even trending leftwards a little bit. Now, let's apply this back to the DNR program. Again, remember the, you now, introduction I gave response to one of the other arguments. I don't find, I'm curious if you disagree, and I'm not trying to poison the well here, but I don't find that case to be anywhere near on the level of, and so are we, right? Certainly, it did suggest that there was a problem with religious viewpoint discrimination. But and there is a notion of resources among student groups, Right. So it does have that component to it.

1:00:52 Thomas: Yep.

1:02:28 Andrew: But again, I think the salient difference is that in the Rosenberger case, you have a public forum for the dissemination of ideas on a university campus. Right. You have people debating back and forth about big beliefs. And this is one of the things that we think is typically core to a university education. Right. Like you you get to college and, you know, you debate about God and you debate about the nature of the universe and this and that. And the idea, I mean, you Know, I did that in college. I probably did the same. Right.

1:03:03 Andrew: And so, you you can see a justification for wanting to include the widest possible range of viewpoints in that discursive environment on a university campus. And now, remember that the sole sentence applying this to this case is, the same is true here, right? And I don't see how making scrap tire resurfacing available to a religious school in any way bears on that question of viewpoint discrimination, right? Like it's just clear that there's no attempt to sort of put the thumb on the scale opposing one viewpoint and favoring another. And that's really it.

1:03:25 Thomas: Yeah. Yeah.

1:03:45 Andrew: And we get, we get to the end.

1:03:45 Thomas: It sounds like just the last desperate attempts to to salvage their arguments to me. Doesn't really sound very strong.

1:03:52 Andrew: Yeah. And, and, and again, remember, I mean, this is, I think where the case is going to be decided because this is the a Locke v. Davey case. This is the, you it's perfectly constitutional to prohibit the use of in-state scholarship funds for devotional theology. And I haven't seen any case that is nearly as close to Trinity's facts as Locke V. Dave. Right.

1:03:53 Thomas: Yeah, Yeah.

1:04:17 Andrew: That seems right. Prohibiting scholarship, uh, is is much, much closer than, you know, uh, distributing the leaflets. And, you know, the the way, the way in which it's not closer is, you know, as the the state pointed out, kind of an own goal that, uh, that I don't see addressed at all in this brief, right? Like, if I had made that kind of mistake, uh, in my initial brief, the state calls me out and says, "Hey, look, your effort to distinguish this here makes it much worse." I think their argument was a bad one. And I don't know that it can be saved. But you have to try and do something like that. You can't leave that unrefuted

1:04:38 Thomas: Yeah, they trumped us. They just ignored it. They're like, "Ah, look over there." Yeah.

1:05:01 Andrew: In a brief, make an argument, I think, from Rosenberger, but think you've got to put that front and center.

1:05:07 Thomas: All in all, here, I just, I'm unconvinced. I really, I, I, I'm, I'm glad, too. I was worried I was going to be reconvinced, but no, I'm unconvinced. I feel like, I think the state kind of owned them in our part two, and they don't, to my satisfaction, they were not able to come up with even a very convincing response, even if ultimately untrue.

1:05:20 Andrew: Yeah. Yeah, I I Think that's right. And I will, I will point out the, I was always going to skip 1D, which is the end of this argument, which, again, charitably does not make a lot of sense. Looking at Trinity's second argument, on the Equal Protection Cause, again it just, I think we don't need to pile on here, it just misses the mark sort of again and again. And remember that the crucial argument was that you do not have the traditional requirements for a suspect class when you're talking about a class of all religious people against a class, when compared to what the Equal Protection Clause has typically been applied, which is historically discriminated minorities, most of what they argue is tangential to that.

1:06:16 Andrew: So there is a long section that says, you know, the state's justification of not spending money, not giving money directly to religious institutions cannot pass strict scrutiny. Well, like that's a fine argument and all, but you have to win the Equal Protection standard before you get to strict scrutiny and to repeat that in a reply brief is, I think, kind of miss, you, you know, is ill-founded. So the real argument that, that applies is in 2B. This is on page 22, in which the Trinity says, says, besides membership in a suspect class is not limited to the traditionally persecuted and powerless. And they cite here to Regents of the University of California versus Bakke, which is a 1978 case, which upheld affirmative action, although it struck down strict quotas.

1:07:02 Andrew: And again, kind of without going into that, which would be a huge rabbit trail, every Supreme Court clerk is going to look at that and say, the Bakke decision upheld affirmative action, what are you talking about? Like, yes, you can cherry pick a little bit out of it to say, you know, that were looking at a suspect class and you were allowing white people to bring a case under Amendment analysis on race as a suspect glass. But that's just, that's not apposite here, right? Because race is an area in which people are historically discriminated against, right? And so the fact that white people took advantage of it or that men might take advantage of a prohibition on sex discrimination, that that doesn't answer the fundamental question of what causes you to create that protected class in the first place.

1:07:52 Andrew: Right? And that's it. And then there is there is is a hilarious section. I will not go through it, but you can read it yourself that says, no, no. You know, religions are religion. Being religious is persecuted in the United States and it's waning in influence. And, you know, all of the arguments that you would expect from the Alliance Defending Freedom that are, Know, just not not at odds with reality. But there we go. So that's the end of the reply brief. I think, I think your assessment sort of remains intact.

1:08:21 Thomas: And this will, when will we hear about this, do you think? All

1:08:24 Andrew: I do not know if it has been calendared for oral argument in the fall term. It should, it should be because the reply grief was filed on August the 12th of this year. So it should there should be oral argument in the fall, which means that we should get a decision on this in the spring. We will continue to track and see what happens. So I predict that this will be a six to two decision. I think you will have Alito and Thomas. Thomas?

1:08:41 Thomas: Right. Oh, nice. Nice. So you're already predicting we won't have a ninth justice. There's two predictions in there.

1:08:56 Andrew: Yeah, well, if it's heard now, right.

1:08:59 Thomas: Yeah. Oh, okay. Gotcha.

1:08:59 Andrew: Yeah. Yeah, I am predicting that we will not get a lame duck confirmation of Merrick Garland, which I think is all signs point to that. That's a safe prediction, and I think that you that the Supreme Court is going to uphold the lower court's decision, and it's not going to be five, I think it's going to be six to two. I think that they I'm going to say I think they're going to pick up Roberts in the majority, and you're going to have Alito and Thomas, who are sort of the most nakedly pro government funding of religion, in in dissent.

1:09:07 Thomas: Pretty safe at this point. Yeah. Yeah, yeah.

1:09:33 Thomas: Tell you what, let's use this prediction segment here as our third segment to round out this podcast. So prediction official, official 6-2 decision. That's the Andrew Torrez expert prediction. But

1:09:34 Andrew: Um, yeah. Yeah. And hold me to that. But look, and I'm deliberately, I want to, now that I've made a prediction, I went to deliberately, you know, I wanna hedge a little bit. I'm trying to make, I'm making,

1:09:50 Thomas: Now you want to backtrack it a little bit. Let's get the excuses out. You know, Andrew's really sore. He rolled his ankle the other day. That is why predictions might not be right.

1:09:57 Andrew: I am making, um, deliberately and provocatively making a bold decision here because, uh, I think, I Think at the end of the day, uh this is not gonna be a close close call. It's not going to be one that the parties are sweating out.

1:10:12 Thomas: We will give you credit if it is 5-3 or something.

1:10:16 Andrew: But I do want to go back to, you know, the principle that we started with at in episode one, which is, even though I think that this is not, Not going to Be a close call, it is in the universe of questions, still something that I think, really illustrates the kind of cases that get before the Supreme Supreme Court. Trinity's initial argument was not crazy. It was not laughably absurd on its face. To get here, you have to have sort of a core of not only legal support, intuitive and emotional proportional equitable support right like that that yeah

1:10:54 Thomas: Yeah, the ultimate conclusion was not outrageous. It was just, I think, the legal framework wasn't there to me, yeah.

1:11:00 Andrew: So there we go uh that's the prediction that's The End of UB the Supreme Court I I hope I hope folks have enjoyed this yeah

1:11:06 Thomas: Absolutely. I, I can't wait till maybe the next time we are able to do this with another case, because it's really interesting to go through the back and forth there. So, thanks for that.

1:11:14 Andrew: And we're giving people in a a supersized episode here so So.

1:11:15 Thomas: Yeah. Enjoy your giant fries and uh, coke with that, yeah. Speaking of, uh, speaking of listeners, uh, hopefully enjoying what we're doing. Here's some listeners who really have, uh, want to think. New patron Doreen, Heather, Heather Loveridge, Michael, Matthew Brown, Bob Chapman, Steven Stewart, Martin Greytak, Aaron Rabinowitz, Craig, and graydingo. Thank you, guys.

1:11:23 Andrew: All right.

1:11:43 Andrew: Thanks as well to Bbod, to Daniel Schauer, to Hugh Hansen, Peter Marchetti, to Zowie, to Matthew Degear, Leon Heartly, and to SueMeImAnAtheist, which maybe I will take you up on that. Thank you. Thank you very much.

1:11:58 Thomas: Hey, there you go. Yeah, you've been looking for somebody to sue.

1:12:01 Andrew: Thank you very much for your support.

1:12:03 Thomas: Yes, absolutely. And now we got to thank our all-time greats. That is Roger Metcalf, Danny Rosari, Eli Bosnick, Dave Nichols of Positively Doubtful Podcast, Dale, Steve Sigmund, Jim Grove, Desecrator, Patrick Fussell, Amanda Lipnack, la bibliotequetress, Heather Loveridge, and Leon Heartly. Thank you guys so much

1:12:25 Andrew: And also thanks to our Hall of Fame patrons Hunter Ash, Michael, Kylie Reiser, Jeff S, Sakashite Fukasumi, to ProPanic who just upped his support. We really appreciate that. And our very top patrons, the Inciting Incident Podcast, and Zabby. Thanks to all of you for being our Hall of fame patrons and And you were really generous support of the podcast. If if you want to join these folks and get a shout out on the air and maybe even join our Hall of Fame, head on over to patreon.com/law.

1:12:58 Thomas: And just a quick note on our first Law'd Awful Movies we're looking to do that upon my return from the conference I'll be at actually we'll both be at Mythicista Milwaukee the Myth Information 3 conference coming up this Friday so see us there but also when we get back we'll start working on that first Law'd Awful Movies which which was our Patreon $900 goal Thanks so much for getting us there.

1:13:24 Andrew: Yeah. And that is this Friday, October 21 in Milwaukee. Stop by and say hi. And we would love to we'd love to meet fans of the show.

1:13:33 Thomas: Absolutely. All right. Until next time, stop breaking the law, assholes.

1:13:46 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.