OA60: Sex and Sexual Orientation

Transcript

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

0:01:16 Thomas: Hello, and welcome to Opening Arguments. This is episode number 60. I'm your host, Thomas Smith. And that over there is Andrew Torrez. How you doing over there, wherever you are, Andrew?

0:01:26 Andrew: I'm great, Thomas. How are you?

0:01:28 Thomas: Doing okay. I am excited to talk about a little bit of a change-up here. We get to talk some not-Trump-related stuff, right? So that's always fun when you can do that on a show. Actually, I saw a tweet just today where someone tweeted like a front page of, I forget which newspaper, but it was like, Trump is not on the front page today. It was like the first time in, you know, 180 something, one day. Well, it's probably more than that. But so we're going to participate in not talking about Trump by

0:01:58 Andrew: Yeah, but before we do the questions, I just wanted to give a shout out to two shows that we're going to have linked in the show notes. I was a guest on the Phil Ferguson show, which is a skeptical money podcast. This was at the request of many of our listeners, many of Phil's listeners when we did an episode regarding the fiduciary rule. A lot of you asked, hey, why don't you talk to Phil Ferguson? So I did. He's a terrific guy. He's got a terrific show. And we talked about a wide variety of issues. We talked a little bit kind of revisiting the the fiduciary rule. But we talked about a large variety of topics. And if you like opening arguments and you like hearing me, I think you'll enjoy hearing me on Phil's show.

0:02:48 Andrew: So we'll link that. And then also a friend of the show, Aaron Rabinowitz, Embracing the Void. He does a podcast along with GW Rodriguez. Aaron has been on Serious Inquiries Only and I was a guest on his show. That'll be Embrasing the Voids number five whenever that drops. And we will have that in the show notes as well. You should give those guys a listen. They're doing a great show.

0:03:11 Thomas: Definitely. All

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

0:03:20 Thomas: Let's get into our first question. First listener question. Question of the Day. Justin Wilder asks, President Trump. No, I'm just kidding. Do a whole fake out.

0:03:28 Andrew: We are doing a Trump free episode on right after. I will point out maybe we will now be accused of our conservative listeners of secretly trying to destroy Trump from the inside because, you know, we did we did it. We did it yeah we did a Tuesday episode that was all pro Trump and now we're going to do a Friday episode that is all pretending Trump isn't there. So, yeah,

0:03:29 Thomas: Yeah. Yeah. Well, we're infiltrating. Yeah. Yeah. Yeah. Okay. There we go. Justin Wildner asks, hypothetical. I sue another individual for a tort. I know before the suit that they have a device in their home that sends audio recordings to a third party. For example, Amazon, Google, whatever. Maybe they have like an Echo or something like that. Will I be able to subpoena the third party to be part of the discovery and or who will be the entity that decides what material from the device's recordings is relevant to the suit? I understand, he says, that in criminal investigations, warrants for this type of files are already being granted. Very interesting. So yeah, I have my little Amazon Echo or dot or something. And I say, "Alexa, how do I rob Andrew Torrez of everything he's got?"

0:04:38 Thomas: And then I, you know, whatever, I rob Andy Torrez or something. Then can you, when you sue, can you say, oh, I bet you the Echo has definitely has recordings of Thomas plotting a crime. So something like like that. Maybe not that exact situation, but what do you say, Andrew? Can that be done?

0:04:56 Andrew: No, that's that's exactly right. And what you would do in that case is you would serve a third party subpoena on Amazon. Right. So in a so in a civil lawsuit, I can already serve discovery on you and, you know, require you to produce whatever records. But but the the grabment of the question is, what if those records are what if there are potentially relevant records to a civil suit that are maintained by a third party? What happens? And the answer is that the burden sort of shifts back and forth, as happens a lot in in the law. You file a subpoena. You can get one that is pre executed from the court. So it is a valid legal document when you type in the party upon whom the subpoena is addressed. If it is subpoenas deus est tecum, you remember this from our vocabulary episode, that is

0:05:46 Thomas: Now, I just remember my mnemonic device, but I won't, yeah, I won'T get into that.

0:05:50 Andrew: The Most common, because that requires somebody to produce documents or other tangible things, right? Right. So a subpoena requires you to put forward a witness. A subpoenas deuces take them requires you to put forth a witness and the documents. And the reason that you need a witness attached to that is because you have to authenticate the documents in order for those documents to be admissible in court. So you serve a subpena. You put in a deadline for responding. That deadline is fixed by the Federal Rules of Civil Procedure. The, the rule of serving a third party, uh, subpoena is Federal Rule of Civil Procedure number, uh, 45. Um, and then that third party has two options. Okay, they can, uh, either, uh, file objections to the subpoena.

0:06:36 Andrew: Okay. And an objection to the subpoena says, um, we understand, uh, that you filed this, uh, subpoena against us, and we think that some or all of your questions are problematic, and so therefore we don't want to respond to some or all of those requests. And those grounds are, generally speaking, can object on grounds of relevance, which I'll, I'll discuss in a minute. Uh, you could object in terms of, uh, undue burden. Um, you can object that it, requirements are vague or ambiguous. Uh, and you can object, uh, that, uh, the, the documents would require you to disclose, uh, privileged or confidential information, um,

0:07:19 Thomas: Is that privileged or confidential information related to Amazon or related to the, yeah. Okay. Right. They have some, somehow it releases some proprietary thing that, you know, is that what you're talking about?

0:07:24 Andrew: Right. Exactly. Related to Amazon, right? So If I want you to Exactly. Right.

0:07:33 Thomas: Like, Yeah. I've

0:07:34 Andrew: Yeah. So, and, and in this sort of case, they, they would certainly make that objection, right? Like, when you're showing sort of the chain of custody, how the information from the uh, Echo gets from your house to Amazon's servers, may be proprietary or confidential information that they don't want getting into the hands of a competitor.

0:07:56 Thomas: Got tons of questions about this, but, but I don't know if you're already going to go there because I'm just wondering if you are going to look at privacy concerns of this kind of thing. I mean, also, is this analogous to, like, when the authorities probably subpoenaed Apple to get to unlock iPhones? Is this that same kind of things, in the case of the San Bernardino terrorists? I think they were like, hey, oh,

0:07:58 Andrew: Sure. No, no, no. Go ahead.

0:08:18 Andrew: Yeah, I mean, that was a criminal investigation. So different rules apply.

0:08:21 Thomas: OK, a little different. OK, OK.

0:08:23 Andrew: Yes. And I'm going to talk about some of the... overlapping concerns here. Uh, but I'm just sort of, you know, walking through your Amazon, what do you decide to do? Right. You get this third party subpoena. So the first set of things you could do is you could file objections. Right. Um, but, but one of the things you probably noticed from that list of objections, uh, other than, uh. Maybe trying to figure out what relevance means. Um. All of those are pretty limited areas upon which you could object. Right? Um. And in, In particular, can tell you from my experience, having served a lot of third-party discovery and occasionally represented clients who have been the subject of third party discovery. So Amazon, all of a sudden you get the subpoena on your desk and you're like, wait a second, Thomas Smith versus Andrew Torrey, who the hell are those guys?

0:09:13 Thomas: Right.

0:09:13 Andrew: I don't know anything about this. Right. So you might think intuitively first that I'm going to object on relevance grounds, but relevance is defined as maximally as possible in the federal rules of evidence. In fact, it says relevant evidence is any evidence that tends to make the existence of any material fact more or less certain. And is

0:09:36 Thomas: Yeah. Yeah. Yeah, well, when you said relevance, I was thinking that would be a hard argument to make depending on the facts. Yeah, okay.

0:09:43 Andrew: Right. The primary ground upon which you might tend to object is the ground that it subjects you to undue burden or expense. And again, you could certainly envision a scenario under which suppose you're a mom and pop IT company and you are then subpoenaed for every email across your server with respect to one of your clients that would require you to process millions of emails at a tremendous expense. And I've and I've had a situation kind of similar to that. And what we did was basically said, look, like this company has three employees. You know, this subpoena wants us to produce seven million documents in 14 days.

0:10:31 Andrew: And, you know, that would cost us, you you know, in order to do that, we would have to hire teams of, you know, contract attorneys. And that was part of our argument. The important thing to note is that filing objections the operation of the subpoena. Right. So a subpoena says by this particular date, certain by on or before May 1st produced to us, you you know, these documents. And if you file your objections in a timely fashion, that stops the operation of the subpoena. And what, what happens is opposing counsel either has to negotiate with you for what they really want or they have to go to court and get a motion to compel. And so there would be a hearing and you would argue back and forth.

0:10:29 Thomas: Yeah. But

0:11:17 Andrew: You know, they would say, hey, look, like we absolutely need this for the case. And you would say. Yeah, that's fantastic. But it's going to take me, you six months and a million dollars to produce it. And I'm not even a party to this litigation. So if they want to pay me for it, that'S great. But, you KNOW, until that happens, I'M not doing it. And the court would sort of balance out all of those interests.

0:11:39 Thomas: So far, I'm just wondering, you haven't mentioned anything about privacy. And I'm wondering if that's, I mean, is that relevant at all? I mean, I guess there's two angles at it. The first would be like, is it legal that there's this device you send that you buy that sits in your house that just listens and records everything you say? Hey, what's the legality there? I'm wondering if there's fine print somewhere that, where it's telling you that it's doing that, then is all that kosher? And then the second question would be, is there any means by which Amazon can say, look, we just don't want to do this. This is our customer's private data. If we start doing this, it's, you know, there's some privacy concerns. Are any of those concerns legitimate?

0:12:22 Andrew: Yeah. There And are really two issues with respect to that. So the first is if Amazon is objecting to producing the documents on privacy ground, that is, they are asserting third party privacy rights. That's one area. And I'll talk about that in a second. But I thought you were asking, in my view, sort of the more interesting question is, what happens when Amazon says, oh, yeah, no, we're totally happy to produce this data, but you say, you know, I have some searches that I have run through Alexa that I would prefer not to have, that are utterly unrelated to the subject of this lawsuit, would be very salacious and highly prejudicial. And we will leave, since we're talking about your Alexa, Thomas, we will, we will leave this to the imagination of our listeners.

0:13:05 Thomas: Yeah. Uh-huh. I'm sure everybody knows what all that means. Yeah.

0:13:15 Andrew: And so, so you could have a situation where Amazon is willing to produce the documents, but you, Thomas, object to their production. And, and in those cases, in, in both of those cases, the mechanism is the same, which is a protective order. And a protective order can do one of several things. A protective order can restrict who gets to see the documents, for example, a very common solution to the situation where Amazon says, "We object because we have proprietary confidential information and we don't want that getting into the hands of a competitor." This is a lawsuit. Lawsuits are public. Therefore, don't want these documents to be out there and attached to a lawsuit.

0:14:00 Andrew: Perfectly reasonable. The way you get around that is by agreeing with Amazon on a protective order that says they can stamp a document highly confidential. And if they do, then you would say certain things could happen to that document, right? So you might say the document can only be viewed by the parties to this case and their lawyers and any experts that have been engaged. Right? Right. And so, you know, if, if I'm suing you and neither one of us are making a competitor to Alexa, then it doesn't really matter if, if we see those documents. Right. Like, what they don't want is for them to be published outside of the lawsuit. And that's a really common device in commercial litigation, is a company gets to market its proprietary information confidential.

0:14:49 Andrew: And then at the end of the litigation, the opposing attorneys have to file a statement in which they either return all the documents or certify that they've destroyed the documents. And those documents that are produced subject to a protective order have to be filed under seal. Like if you cite them in a brief, it has to be file under seal, you have to submit different copies of the brief. So in other words, it's a, it's an, it's a useful device to maintain the confidentiality of the information, and that, and that would be the primary way in which you would go about protecting either the interests of the, you know, parties to the litigation itself, or third parties, is by having some kind of a protective order that governs how the, the data is, uh, is produced and whether it's disseminated to the public.

0:15:45 Andrew: Um, I, I've, I had a protective order once, uh、 that didn't allow either side to see the information. We submitted it. This was a complicated arbitration. Uh, but ultimately what we did was we submitted it for, uh, an in-camera inspection, which means just by the judge, by himself, um, arbitrator, who's our retired judge in this case. And, uh,, and we never got to see what those documents were Boy, boy, did I want to see what those.

0:16:07 Thomas: Yeah, that's weird. How do you, yeah, how does that affect your strategy of what you're arguing and stuff? That must be interesting. Are

0:16:13 Andrew: Because I was Yeah. So this was a case that involved the interpretation of a contract that was negotiated in the 1970s. And the other side had taken the position that the lawyers on the deal-making team were rendering legal advice. And thus, everything they said, all their internal memoranda, every time somebody was copied, that was privileged and they weren't going to give us the documents. And we had lawyers on our team as well, and we did not take that position. So we waived whatever attorney-client privilege there was, and we asked them in discovery to produce all those documents to us, and they asserted attorney-klient privilege. And ultimately, what the arbitrator decided was for their privileged documents that those would be submitted for an in-camera inspection.

0:17:09 Andrew: Perfection. Um, and, you know, when we took the view of, uh, look, if there was a smoking gun, and I could I, I still remember, it's, it's a Bates number that ends in in 325, but this case was like 15 years ago. Um, So-

0:17:23 Thomas: Is a Baits number, but anyway, we're pretty, all

0:17:25 Andrew: Oh- Yeah, no. No, I'll, do let me, let me do that, the tiny little rabbit trail. Um, when you submit documents in litigation, what you do is number those documents sequentially, and it is called Bates labeling. I think the original guy was named Bates, who came up. I don't know. But so like if I sued you, then my documents would be like Torrez 0 0 0 1 through whatever. And so you'll sometimes see this when you look at original documents in the lower right hand corner, there'll be, you know, a code. So it might even be TOR, right? Like because you don't have it or whatever. You know, you're trying to do it in a sort of a compact fashion. And that way you can identify those documents when you are citing them in your briefs, you can attach them, and everybody knows which document you're talking about that you've produced. So you Bates label your documents, you produce them. One of the things that, do another little bit of vocabulary here. You produce

0:17:26 Thomas: Right. Yeah, and then

0:18:27 Andrew: Documents typically, you can do it in other ways, but typically when you're a corporation and you're producing documents in response to litigation, you reduce them as those documents are maintained in the ordinary course of litigation. So, in other words, you go through their seven file folders, you know, seven file drawers with 100,000 documents in them. You pick them all up. You number them from one to 100, 000. And then lawyers will go through and look through it and say, oh, this document is from Andrew Torrez, your lawyer, to Thomas Smith, his client, and says, has the header at the top, you have seen this because I've done some legal work for you, that says privilege and confidential attorney work product. You pull it out.

0:19:13 Thomas: We discuss our crimes that we're committing, and it's kind of, yeah, got it.

0:19:15 Andrew: Yeah. And and and and you would then log that on what's called a privilege log. So when when I when whoever sues you and this is now complicated because initially it was me suing you. And if I was your lawyer, that would be very confusing. But right.

0:19:27 Thomas: Yeah, yeah, yeah, Well, your clone. Uh, there's an evil twin Andrew Torrez, that's

0:19:31 Andrew: Right. Yeah. When whoever sues you gets the documents, they're flipping through and they would go, OK, page 323, page 324, page three twenty six. Wait, what the hell happened to three twenty five? And then you would go look on the privilege log and the privilege. Log would say. Document 325 is attorney-client privilege. It's from Andrew Torrez to Thomas Smith. And it would describe, you know, the reason why it was withheld as privileged without revealing.

0:19:32 Thomas: Yeah, Lawyering sounds like a lot of work, you must have a lot lot of

0:19:59 Andrew: Discovery is a lot of work. It is, you know, we've talked about this before in the difference between getting out on a motion which is before discovery.

0:19:59 Thomas: Yeah, yeah, and now Is this the kind of like frustrating, tedious work that all the young aspiring lawyers have to do, and so that's why, when we've mentioned before, like, you know, in Law'd Awful Movies, she's 25, she's not going to be working this case, or whatever, the example would be, is that, because they'd be doing all this tedious stuff down in a basement somewhere, somewhere, you know, like labeling.

0:20:14 Andrew: Yes, exactly right. That is. That is exactly right and in in any commercial litigation matter that goes to court, it is it is almost always the case that there is, thousands to hundreds of thousands to millions to more responsive documents. And so, yeah, yeah.

0:20:45 Thomas: Now, you know, I'm not so heartbroken that I might not pass the bar now. Actually, I got to ask you one more quick. We're going along, but one more question. I'm just really curious about and maybe hopefully it'll be a quick answer. If Amazon now, let's say Amazon, let'S say we don't know what the truth is here, but let'S Say Amazon just says because we don't we don'T work for Amazon. We don'T know. They just say, oh, you KNOW what? We DON'T save any of that data. It'S a company policy that we We just delete it immediately. So can't give it to you. Is that the end of the story or is there any, would they be able to, I don't know, is there any sort of delving into that, that they're able to do, that the parties are able to do? How would that work? I'm just curious.

0:21:23 Andrew: Yeah. In in that sort of a situation, what you would do if if I were counseled to Amazon and it were truly the case that they didn't maintain the document is I file an objections and a response. And in the response, I would say, you know, subject to and without waiving the foregoing objections, Amazon responds that it has no documents that are responsive to the subpoena because those documents are not maintained. If certainly could be the case. And I have I've never had to litigate this, but I have threatened this where. And again, the situation was I had served a request on a company for quarterly reports, you know, reports from the board of directors, directors and they responded with that answer, which is often a boilerplate answer when you're going through, you know, tons and tons of individual requests.

0:21:32 Thomas: Okay.

0:22:19 Andrew: Um, and what had happened was some junior lawyer had just cut and pasted their, uh, no, we're not giving you anything answer and had given it to a question to, to a document request that sought, uh, documents from the, you know, reports from the board of directors. Uh, and I re and I called back and I said, I, are you sure you're not going to give us 24? And the, and the first lawyer said, yeah, we're not gonna give you 24. And I said, maybe you should talk to the senior partner because I don't think you want to be on the other end of a motion to compel in which your client has said under oath that they are not keeping the required records that are necessary for them to maintain their legal status as a corporation.

That will put you in a lot worse place than just giving me the damn documents. Um, and ultimately I then talked to, you the senior partner running case who was like, oh yeah, no, this was a mistake and we apologize and you'll get your documents. So, uh, so but you could, there is a, you, you could litigate, what you would do is, um, you would require Amazon to, uh, produce a custodian of records, so the person who would be in charge of the fact that that this stuff is destroyed. I could see a scenario in which, you know, if all the parties and the court were like, no, everybody knows Amazon keeps

0:22:55 Thomas: Yeah. Right. Yeah,

0:23:35 Andrew: This stuff, right? Like, you Know, here's a public story in which the CEO of Amazon, you have Jeff Bezos, right, that's still still him, right.

0:23:43 Thomas: I think so.

0:23:44 Andrew: Yeah, has said, Yes, we keep all this on our server forms. And like, here'S a document that says, we're not keeping it. So, you know, in that situation, I could imagine the court requiring Amazon to produce the witness to explain why they don't have any documents.

0:24:02 Thomas: That's really interesting. Interesting. I wonder if we got to wrap it up, but I wonder if it would be smart for companies that have this kind of thing to just make it a policy that like we don't keep everything's thrown away after a certain period of time. It's written over or whatever, just so that they never have to process all these requests or something like that.

0:24:04 Andrew: Yeah. Yeah.

0:24:20 Andrew: Well, And let me say that there is, there's an important concept in law, law, if you have that policy pre-existing litigation, right, that says, you we only maintain our emails for this period of time, we only maintain records for that period of time, that's perfectly fine, and in fact, one of the things that people often request in litigation is a copy of your document retention policies, but if you conveniently change those policies after you've received notice of litigation, that is called spoliation of evidence. And as usual, Yeah, it's much worse than, you know, just having to comply with the damn thing in the first place because because that's a crime.

0:24:37 Thomas: Right. Yeah. Yeah, that's not good. Yeah. Well, really

0:25:02 Andrew: I

0:25:02 Thomas: Interesting stuff there. I think there's a lot of interesting issues. So thanks, Justin Walder, for the great question. And we'll have to move on to the main part of the show.

0:25:13 Thomas: Andrew, today for the main topic, it's going to be a question and answer. It looks like you're going to break down for us a case involving a lesbian woman who was improperly passed over from a teaching job in Indiana. Anna, so why don't you tell us about this? What's going on here?

0:25:29 Andrew: Yeah, this is a recent decision by the U.S. Court of Appeals for the Seventh Circuit. This is an en banc decision. We've talked about that before. So it was decided before the entire panel of The Seenth Circuit. And the reason that that you did that in this case is because first panel to hear this appeal said we have binding precedent from the Seventh Circuit in this matter on precisely this issue. And one panel cannot overrule the prior results of a prior panel.

0:25:42 Thomas: Right. Oh, okay.

0:26:08 Andrew: Only an unbunked decision of the court. You get all the justices together. How many justices are there? There are one, 11 justices on the Seventh Circuit. I will say there are a number of very conservative judges on this circuit and a number of those conservative judges voted along with the majority. The Seventh Circuit, uh, sits over the states of Illinois, Wisconsin, and Indiana. Um.

0:26:39 Thomas: Okay.

0:26:39 Andrew: So as a result, uh. It is a very, it's a, it's a bimodal circuit. Uh. So for example, the opinion was drafted by Diane Wood. Um Diane Wood, uh was my top choice. You might recall when when Scalia died for Obama appointing someone to fill that vacancy. She is probably my favorite appellate justice right now. Lawyers keep we like baseball cards. We rank our favorite appella justices.

0:27:11 Thomas: Oh.

0:27:12 Andrew: No, Diane. Diane Wood is is.

0:27:12 Thomas: Oh, we need some baseball cards for

0:27:14 Andrew: Yeah, she is. She is powerfully intelligent. She has impeccable credentials. And and sadly, she will never make it onto the Supreme Court due to her age now. But but I really wanted to see Diane Wood on the Supreme court. It also has a number of kind of famous conservative judges, Judge Posner, Judge Easterbrook, who joined in the majority. And we will talk about the dissent as well. There were only three justices who dissented from this. It's fair to say that this is a landmark decision. It is the first time. So what is it? Right. We've talked about the Seventh Circuit and the composition. This is the first time that a circuit court of appeals has ruled that Title VII of the Civil Rights Act of 1964, which makes it illegal for an employer to discriminate on the basis of a

0:27:14 Thomas: That. Yeah.

0:27:29 Thomas: Oh,

0:28:14 Andrew: Person's, quote, race, color, religion, sex, or national origin. OK.

0:28:20 Thomas: I see. So we've talked about this before, different times of whether or not sexual orientation kind of counts under sex discrimination, right? Because there's been different, you know, it's like, well, sure, any man can marry a gay man and a straight man can both marry a woman. So it's fine. You know, that kind of argument versus no, it says it's sex discrimination. OK, interesting.

0:28:20 Andrew: Right. Exactly. Right, right.

0:28:41 Andrew: And and let me point out that virtually every circuit court of appeal to have considered this question in the past. Now, some of these cases go back to 1979 to 1990. So these are old cases in some cases. But virtually every court to consider it has have said no, that Title VII applies on its face to prohibit discrimination on the basis of sex. That if you want to add sexual orientation or gender identity, you can do that by amending the law. But those are distinct concepts.

0:29:26 Andrew: And the fact that Congress did not choose to do that means that we should infer that sexual orientation does not count. And I should add, a bit of disingenuity in that for the last seven years of the Obama presidency, the Democrats in Congress, first when they controlled but did not have a filibuster-proof majority in the Senate, and later when they were in the minority, attempted to introduce the Employment Non-Discrimination Act, or ENDA, E-N-D-A, which would in fact add sex discrimination to uh to Title Seven. And that that was blocked by a minority of of Republicans via the filibuster. So, you know, the argument of the the if the people want this they can make it happen uh is is kind of hollow.

Um, if If a super majority of the people want it, uh, and you don't have enough gerrymandered seats, then they can making it happen. But uh but but nevertheless, I want, you know, look, we we talk about jurisprudence on the show and I want to set up in sort of in fairness to the other side and what the legal landscape is. So so that was kind of the history prior to this. How did this case play out? Kimberly Hively was a an adjunct professor at Ivy Tech Community College in Indiana. And she started there in 2000. She began as a part time professor. After nine years, she started applying for full time positions between 2009 and 2014, and then was never granted a full time position.

0:30:03 Thomas: Yeah, yeah, yeah.

0:31:09 Andrew: And in July of 2014, her part time contract was not renewed. She believed that this was on the basis of the fact that she was openly lesbian. I'm quoting from the decision on that. Right. Like that that language is a little weird to me, like openly lesbian, but, you know, that's how it's described. Um, so, uh, she, uh filed a complaint with the Equal Employment Opportunity Commission, uh and, uh the EEOC said, yep, uh you have grounds to sue. Uh, so she filed a lawsuit against Ivy Tech, uh an Ivy Tech move to dismiss. And so, again, we've talked about this. We're going to talk about this more later on in the show. A motion to dismiss means even if the facts are, as the plaintiff alleged, they are insufficient to state a cause of action. And so what Ivy Tech said was sexual orientation is not a protected class under Title VII. So therefore, even if we did pass over her for a full time spot because she's gay and even if we fired her because she'S gay, there's nothing you can do about it.

0:31:31 Thomas: Sure.

0:32:25 Andrew: And the district court said, yeah, that's correct. Granted the motion to dismiss. Then she, Professor Hively, appealed to The Seventh Circuit had a split panel that affirmed, but said, we are affirming on the basis of binding precedent sexual orientation is distinct from sex discrimination, from a case called Doe versus City of Belleville, which is a 1997 decision of the Seventh circuit. And, uh, and, and that panel said, look, we think that might be wrong, but we can't do anything about that without this being heard on bunk.

0:33:10 Andrew: And, um, and so the entire seventh circuit then voted to take up the case on bunk you,

0:33:16 Thomas: How does That work? So they they uh did did anybody need to file or request an en banc thing, or was it just once the panel said we want to look at this en banc, who, how does it proceed from there? Do they did Did the other justices have to agree, or do they have to, how does that work?

0:33:29 Andrew: You can. And yeah, good question. Whenever you lose at circuit the court level, you can petition for writ of certiorari to the Supreme Court, or you can motion for reconsideration en banc. And you can say, I want the entire panel to hear this. Now, that's almost, you know, both of those have the same very, very low likelihood of success. But but here they

0:33:33 Thomas: Oh, Okay, Yeah, Yeah, Very Low Percentage, Did They Drop, they dropped hints in the uh The the panel

0:34:00 Andrew: Didn't drop hints. Two of the judges on the panel wrote a concurrence that said, we we think that that an unbanked panel of this court should revisit.

0:34:01 Thomas: Oh, No, Yeah,

0:34:09 Andrew: Visit, uh, Yeah, Right, They Said So That's that's pretty good. Like, when, you if I've got to lose before an appellate court, having the judges tell me in concurrence, uh, hey, we're we're we're ruling against you, but we'd rather not, uh, and we'd Like

0:34:09 Thomas: Yeah, more Than Hints, I Guess Is what You're saying. Yeah, boy, If Only someone would appeal for an en banc Decision. Oh, I Wish That Would happen.

0:34:26 Andrew: Right, Yeah, I Feel Like we I Feel Like we got a good shot of getting that. Um, and uh, I don't know, having never clerked, uh, for uh, court of appeals, the U.S. circuit court of appeal, um, I don't know procedurally how that works, but I suspect it works the same way as the Supreme Court granting cert, that is that there is an informal, uh, there are 11 judges on the 11th circuit and my guess is that they follow a rule of five, and that if five Of the judges say "Yeah, yeah, yeah, let's hear this en banc," then that's enough. And so I don't know that the the Seventh Circuit can also sua sponte take up the case en banc. The procedural history does not say whether there was a motion or whether the court did it. It wouldn't really matter. Like when when you write in concurrence, "Boy, I wish we would hear this," on like, you know, the parties are going to move. So they did.

Then this opinion begins with an explanation of sort of why this is worth revisiting. The opinion says the Supreme Court has not left this subject, that is the distinction, if any, between sex discrimination and discrimination on sexual orientation, entirely to the side. To the contrary, as the panel recognized, over the years, the court has issued several opinions that are relevant to this issue before us.

0:34:29 Thomas: Yeah, No,

0:35:44 Andrew: Key among those decisions are Price Waterhouse v. Hopkins and Ancale v. Services, Inc. Price Water House held that the practice of gender stereotyping falls within Title VII's prohibition against sex discrimination. Discrimination. And Ancale clarified that it makes no difference the harasser is or is not the same as the sexof the victim. Okay. So think about, I'm about to kind of go through the analysis, but the Seventh Circuit then recognized, hey, look, when we talk about what it means to discriminate on the basis of sex, the Supreme Court has given us more guidance since our initial opinion on the subject. And in particular, they've said, look, sex, it is discrimination on the basis of sex to discriminate on the base of gender stereotyping, right?

0:36:36 Andrew: That is, boy, you know, you're kind of butch for a woman, right, like that, right. And that they have also found sex discrimination where in the same sex context, which is to say if a gay man sexually harasses a man, that that is discrimination on the basis of the plaintiff's sex just as clearly as if it were a straight woman harassing that man. Right. Both of those make sense as a matter of logic. Right. Those were not particularly controversial Supreme Court decisions. Then the question becomes, do these subsequent Supreme Court decisions create an ambiguity in the statute that allows the Seventh Circuit to address the issue?

0:37:28 Andrew: Or is it just enough to say, you know, sorry, doesn't say sex discrimination, therefore, you know, no dice. In other words, is is it clear and unambiguous that sex only refers to discrimination on the basis of, you know, biological gender, right? First, the, and this is actually not not first, the Seventh Circuit jumps around a little bit. But they quote from Ancale that says, look, and Ancale is the decision that says it can be same-sex harassment. And they say, and this is the Supreme Court, we see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from coverage of Title VII.

0:38:16 Andrew: As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII, but statutory prohibitions often go beyond the principal devil to cover reasonably comparable evils, and in this, it is ultimately the provisions of our laws rather than the principal concerns of our legislation by which we are governed. Title VII prohibits discrimination because of sex in the terms or conditions of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements. And then, this is actually in the previous section, but I think analytically it makes sense now, the Seventh Circuit tackles the, but the statute simply doesn't stay sexual orientation, right?

0:39:05 Andrew: And here's how they evaluate that argument. In our view, it is simply too difficult to draw reliable inference from these truncated legislative initiatives to rest our opinion on them. The goalposts have been moving over the years as the Supreme Court has shed more light on the scope of the language that is already in the statute, no sex discrimination.

The dissent makes much of the fact that Congress is acting more than 30 years after the passage of Title VII made use of the term sexual orientation to prohibit discrimination or violence on that basis in statutes such as the Violence Against Women Act and the Federal Hate Crimes Act. But this gets us no closer to answering the question at hand, for Congress may certainly choose to use both a belt and suspenders to achieve its objectives.

And the fact that sex and sexual orientation discrimination may overlap in later statutes is of no help in determining whether sexual orientation discrimination is discrimination on the basis of sex for purposes And in addition to, I love reading whenever courts employ belt and suspenders as, after it came up in our vocabulary lesson, think about the logic there, right? Like they're

0:40:11 Andrew: Saying, yeah,

0:40:07 Thomas: Yeah. Well, that's The interesting thing, I was going to ask you, is this related to this? I was gonna ask you if it would almost hurt the efforts to have sex discrimination mean sexual orientation to go back and add it in. Do you even know what I mean? Like when you said, oh, Congress was trying to add this in at a certain point, does that almost weaken the idea? Like, well, look, if they were trying to added in, that means it didn't count originally.

0:40:39 Thomas: You Is that kind of related to this?

0:40:39 Andrew: And that No, that's exactly right. And the language that I cut short that said, you know, this truncated legislative history was discussing that very point, right? In other words, is to say, yes, there is a little bit in the legislative record from which you could draw that inference. But you could also draw the inference that says right now it's ambiguous. And by adding sex discrimination, by adding sexual orientation to the statute, that makes it unambiguous. That makes it clear. Right. Like it's not necessarily the implication when you add something that you are adding from scratch. You could just be making it obvious. Right? Right. So for example, you might have a statute that prohibits fraud in checks and the issuance of financial instruments. Right. And a check is a financial instrument. What what happened was somebody wanted to add to the statute a clarification. And you could later come back around and say, you know, 20 years later and say checks, comma, electronic debits, comma. You know, and add additional things to that list. It doesn't mean that those things were not part of the original statute. It just means that you are now clarifying.

0:41:11 Thomas: Okay. Okay. You're clarifying. You want, yeah. Okay. You want it to be more explicit.

0:41:58 Andrew: Right. Right. Now, again, it also doesn't means that the argument the other way is wrong. Right. Right. And so what the Seventh Circuit says, and this is, you know, this was something that came out in our episode 49, which was a general critique of originalism. What the Seventh Circuit says is, look, we just don't have enough evidence to decide with finality either way. And if you're going to rule what a statute means, our job as the court to make that decision and to say we are precluded because you can make an argument based on an omission from a statute, like that's just not enough evidence in in their view. And And I think that's a, I think that's a good argument. Um, it is not to say again that, you know, as we've said from the beginning, um, I think what, what also makes this an important, significant and well-reasoned case is that the, um, Seventh Circuit doesn't shy away from engaging the best arguments on the other side. Right. They acknowledge, acknowledge precedent.

0:42:23 Thomas: Okay. Yeah.

0:42:58 Andrew: Uh, they acknowledge prior interpretation. They acknowledge the absence of that language from the statute. Uh, and, and they say, uh, as they go through the arguments in favor, uh, of their ruling, uh, they say, on balance, we think that, uh, sex includes sexual orientation and here's why. Uh, but they don't try and minimize or pretend like, uh, you know, there, there aren't arguments to the contrary. So let's start with baseline principle.

It's one you alluded to when we started, which is the counterfactual we must use in evaluating this is the situation in which Hively is a man, but everything else stays the same, in particular, the sex or gender of the partner. Hively alleges that if she had been a man married to a woman or living with a woman, and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her. Uh, and then there's a parenthetical, we take the facts in the light most favorable to her because we're here on a Rule 12(b)(6) dismissal. Naturally, nothing we say will prevent Ivy Tech from contesting these points in later proceedings. We've We've talked about that.

0:43:59 Andrew: Right, so, yeah.

0:43:58 Thomas: Sure. Sure. So they're sort of granting the, some of the arguments.

0:44:00 Andrew: Right. Because that's the position Ivy Tec took. They said this is a motion to dismiss. Yeah. It

0:44:02 Thomas: Okay. So quick, yeah, quick clarification. If this goes against them, which I guess it did on this, on this court. So can they then go back and argue the facts and say, well, I had nothing to do with her being a lesbian. Okay. Okay, so this first try was even if we discriminate, it doesn't matter. And if that gets shot down, they're allowed to kind of go back and try again and say, well, yeah, aha, gotcha.

0:44:12 Andrew: Did Yeah. Yes. Right. Right. And And The difference, and the, the difference is motion to dismiss pre-discovery, right? If they get out, then they don't have to do anything.

0:44:34 Thomas: Oh, that's right. So there's no facts determined thus far.

0:44:35 Andrew: Yeah. Right. Yes. So now if they go back and say, okay, well, we didn't fire her because she was a lesbian. We fired her because she was, you know, terrible at teaching. You could make that argument.

0:44:38 Thomas: Okay. Then there'll be like discover emails, discover, you know, any sort of evidence that might go either way on that.

0:44:47 Andrew: Right? Yeah. And as we discussed in the first segment, right, that's where lawsuits get expensive. So that's, That's the whole point, right. Um, and then the Seventh Circuit says, okay, so, uh, pretend that she's a man. Uh, the facts allege that, uh, she would have been treated differently. This describes paradigmatic sex discrimination, to use the phrase, for Mulane,. Ivy Tech is disadvantaging her because she is a woman. Nothing in the complaint hints that Ivy Tech has an anti-marriage policy that extends to heterosexual relationships, or for that matter, or even an anti-partnership policy that is gender neutral. Um, Am, I'm going to skip over the associational argument that's made in the case, um, because I, I think it is, uh, a, it's a good argument, but I think it's lesser argument. It would, it would require a lot to to explain it, uh, and I, and I want to to sort of get to the conclusion, which is the Seventh Circuit says it would require considerable calisthenics to remove the sex from sexual orientation.

This effort to do so has led to confusing and contradictory results, as our panel opinion illustrated so well. Is not to say that authority to the contrary does not exist. As we acknowledged at the outset of this opinion, it does. But this court sits en banc to consider what the correct rule of law is now in light of of the Supreme Court's authoritative interpretations, not what someone thought it meant one, 10, or 20 years ago.

0:44:51 Thomas: Okay. Yeah. Yeah. Yeah.

0:45:22 Thomas: That's a good argument.

0:46:08 Andrew: The logic of the Supreme Court's decision, as well as the common sense reality that is actually impossible to discriminate on the basis of sexual orientation without discriminating on the bases of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line. And I wanted to to sort of read the conclusion and go through, because that I think that buttresses the of the point I was making previously about how the court, you know, sort of honestly tackles head on the arguments to the contrary. And also is, you know, you and I have discussed what does it mean under the ordinary theory of jurisprudence to be bound by stare decisis? It means that it is granted considerable weight. And here, this is an example of departing from stare decisis, right? Right. And so, you know, and we I've had, you know, nitwits on Twitter who are like, oh, you believe in stare decisis. So does that mean you think Plessy v. Ferguson is good? Well, obviously not. Right. Like what what what the principle means?

0:46:51 Thomas: Yeah.

0:47:07 Thomas: It doesn't mean infinite weight, right. It just means a very high weight that you give it

0:47:10 Andrew: Yeah, exactly. As opposed to zero weight, which is which is what Scalia gave it, you know, the entire history, you every one of his opinions.

0:47:13 Thomas: Okay, right. Yeah. Yeah. Seems reasonable to me to give it, to give it a high weight, but not an infinite one.

0:47:21 Andrew: Right. Right. Right. And that's that's an excellent. I think you've put that much more pithily than than I have put it. So I like that. And I'm going to, I'm gonna continue. I also wanted to add, there is a concurrence from two judges, neither of whom I know very well, Flaum and Ripple. And what they say in there, so they join the opinion. But what they add is, existing law interpreting Title VII does not require that plaintiff prove that they were solely discriminated against on the basis of sex, but rather that sex was, quote, a motivating factor for any employment practice, even though other factors also motivated the practice. Right. And think about that scenario. That's the one where, you know, somebody says,

0:47:30 Thomas: She's

0:48:16 Andrew: You know, there's, there's all of this evidence that a woman is being, you treated poorly in the workplace, but then there's also evidence that, you know, no one likes her either, right. And so, you know, that there was, there were cases in which the employer's defense was, no, no, we didn't fire her because she was a woman, we fired her because everyone hates her. Um, and, and yeah, so part of the reason people hate her is because we've, you know, created this environment. And, you know, yes, sure, there are all these sexist comments, but, you know, but wasn't, nobody said we wanted to fire her because she's a woman. We said we want to fire because we hate her. Right.

0:48:52 Thomas: Being so uptight, Yeah.

0:48:53 Andrew: Yeah. No, no. That's true. Right? Those are all. And so the Supreme Court has said, look, look. And in fact, this is the language I quoted is in the text of Title VII itself. So the Congress recognized this as well. Look, you don't have to prove that the only reason you fired someone was on the basis of sex. You just have to to prove that it was because of their sex, not solely because of their sex. So the the concurrence makes a really interesting argument that I haven't seen made before, that said, so in interpreting Title Seven, the Supreme Court has said the critical inquiry is whether gender was, quote, a factor in the employment decision when it was made. And then the concurrence says, so if discriminating against an employee because she is homosexual is discriminating against her because she is a a woman who is be sexually attracted to women, then it is motivated in part by an enumerated trait, the employee sex, that is all an employee must show to successfully allege a Title Seven claim.

0:48:53 Thomas: Yeah, yeah, yeah.

0:49:56 Andrew: Hopefully I've made that clear in going through this, that like basically what the concurrence says is, look, we don't, this doesn't have to be a radical decision. Our existing cases have said it is enough to bring a Title Seven claim if sex is one component of the discrimination that that you are suffering. Right. And if our understanding now is that discrimination on the basis of sexual orientation is discrimination on the basis of sex plus discrimination on the basis of other, stop, right, the fact that you're sexually active with somebody of the same sex, then that is, by definition, at least in part, discrimination on the basis of sex. So in other words, discrimination on the basis of sex would be distinct from but would encompass sexual orientation. And I think that is a really, really interesting. The fact that it is two moderates on the court in a concurrence. Sometimes we've talked about this before at the Supreme Court level. Sometimes those rationales wind up kind of percolating their way through the legal community.

I was just struck when I read the concurrence that that this is this is a really good argument that that I haven't seen raised before and is a good way to to try and pick off judges who may be, you know, reluctant to, know, craft a landmark decision, but but are open and persuadable. I'm going to skip the dissent because the dissenter, you could predict what the dissente is. Right.

0:50:13 Thomas: Yeah, is it

0:51:30 Andrew: Know, the the dissent quotes from Scalia's book, You know, and it's and indeed, this is page 45, will link the decision in the in the show notes. It says, "It is simply incompatible with democratic government, or indeed even with fair government, to have the meaning of law determined by what the lawgiver meant rather than by what what the lawgiver promulgated. Ours is a government of laws, not of men. Men may intend what they will, but it is only the laws that they enact which bind us." Antonin Scalia, A Matter of Interpretation, Federal Courts in the Law, page 17. Basically it just says that there's a hilarious bit where the dissent goes on about how important stare decisis is, because, of course, you know, in this case, stare decisis would compel their conservative outcome. Uh,

0:51:30 Thomas: Originalist based? Oh, God. Right, right,

0:52:18 Andrew: But, Uh, but but look, like, it is not. I mean, I I'm I am being facetious. I welcome anyone who who wants to challenge me here. It is a good argument to say you are asking for a radical departure of the law. It is a good argument to say legislation at the time and subsequently have used the phrase "sexual orientation" as separate from sex or sex discrimination. Those are good arguments. It is just that, in my view, I think the Seventh Circuit's analysis of the history provides the best way to square to come up with a result that incorporates all of those arguments, right?

0:52:18 Thomas: Right.

0:53:05 Andrew: Right. That says yeah, no, I get that. It took us a long time to kind of figure out, you what this meant. It is absolutely a departure from sort of the primary thing that was intended. There's no way to sort of draw the line and still be consistent with the principles that that that the Supreme Court has outlined in prior sex discrimination cases. So, case will be appealed to the Supreme Court. I Supreme Court is likely to take it up. And I think, under its current lineup, we might well see a even with Neil Gorsuch on the court a 5-4 decision affirming this decision, that Anthony Kennedy, as I've long said, is not he The balance of his jurisprudence tilts conservative, but he is not an originalist. He has been moving leftward in recent years and he has been a reliable vote in favor of of equal rights on LGBTQ issues. Let's let's keep our eyes open. Yeah.

0:54:05 Thomas: Yeah, let's hope that continues. And yeah, that's really fascinating. Thanks for breaking down those arguments. So good. Let's keep an eye on that. And good stuff. I'm glad that I like those arguments, even I, you know, who obviously I do desire a certain an outcome in these kinds of things. I wasn't totally sure on like, you know, sex versus sexual orientation. Do you need a separate wording in the law to get that in? But, but the hypothetical where you change the gender and say, you Know, if this was a man, etc, etc. That's really convincing as well as the other argument you brought up. So really cool stuff.

0:54:42 Clip: The law breaking down

0:54:49 Thomas: All right, Andrew, breaking down the law. You heard the song.

0:54:52 Andrew: Love I love the song. OK.

0:54:56 Thomas: And that means it's time for you to break something down for us. So what is South Dakota Bill 149?

0:55:03 Andrew: South Dakota Bill 149 is something that I think, unfortunately, may be a model in various states. It is designed to provide adoption agencies within the state with increased protection for essentially refusing to place with gay couples. OK. And so what the bill does is, I'm going to, I'm going to around a little bit, because it first defines adverse action and then subsequent provisions. So Section 3 says no child placement agency may be required to provide any service that conflicts with or provide any service under any any circumstances that conflict with any sincerely held religious belief or moral conviction of the child placement agency that shall be contained in a written policy statement of faith or other document adhered to by a child placement agency. Okay. That's Section Three. There's a little bit more.

Section Four says the state may not discriminate or take any adverse action against a child placement agency or an organization seeking to become a child replacement agency on the the basis wholly or in part that the child placement agency has declined or will decline to provide any service that conflicts with or provide any services under circumstances that conflict with the agency's sincerely held religious belief or moral conviction of the child placement agency.

And then when you scroll back, it defines adverse treatment as altering the tax treatment, disallowing a tax deduction, denying an application for or canceling a benefit from a state program, declining to enter into a contract, canceling a contract, canceling a license, all of that stuff.

0:56:46 Andrew: So essentially, it uses the broadest language possible to allow adoption agencies in South Dakota to refuse to provide services that, quote, conflict with their sincerely held religious or moral beliefs. And we know what that means. Right. It's notable because this is the first one I have seen that separates out and And includes both religious belief and moral belief.

0:57:01 Thomas: Yeah, right. Yeah, I noticed that. I was wondering about that. So it sounds to me like, what if I am just, I'm a racist and it's my sincere moral belief that I can't give a child to a black family. You know, is that covered by this law?

0:57:13 Andrew: Yeah.

0:57:24 Andrew: On its face that would be covered by this law. And and so I know that our friends at the Satanic Temple listen to these episodes. Um, if, yeah, if if I if I were a a child placement agency in South Dakota or if I were somebody who had friends in South Dakota, I would absolutely start cranking up a number of these, right? Like draft a, you know, sincerely held statement of moral beliefs that, you you know, is, uh, that, that says, you know we believe that, you know, um, following one of your guests on serious inquiries only that, uh heterosexual breeders are, uh you know irresponsible to

0:57:27 Thomas: What a great law. Ooh, here's a good one to do.

0:58:12 Thomas: Yeah.

0:58:12 Andrew: The future of the population and that, you know, children should only be placed in loving homosexual households um, and just see, you know, see how that works, uh because, uh

0:58:18 Thomas: I love it. Yeah. Well, you know, the law is meant to protect your sincerely held religious or Moral beliefs. So yeah.

0:58:25 Andrew: It, This is why, I mean, this, this goes back to, um, gosh, can I, can I make reference to something that relates to Donald Trump, or are we going a totally Trump free episode?

0:58:33 Thomas: Let's Check with The referees, uh, referee says maybe, let's, let's just say he who shall not be named.

0:58:40 Andrew: Okay. Yeah. Uh, but no, but I mean, we, we talked at length in discussing a particular executive order, uh, we discussed the, uh, the City of Hialeah case, the Church of the Lukumi, uh, versus City of Hialeah. I actually asked the question, sadly, my old Professor Alan Dershowitz didn't respond. I'm sure he meant to, but just didn't quite get around to it. Alan Dershowitz had said on a CNN program that, you know, the Supreme Court doesn't really inquire into the motivation behind laws. And look, that's true as a general principle, but it's clearly not true when you're talking about the, for purposes of First Amendment discrimination basis.

0:58:42 Thomas: Yeah. Yeah.

0:59:27 Thomas: It sounds like they've done that a lot in examples you've talked about, right?

0:59:28 Andrew: And yeah, And this is a good example of how that might come into play, right? So, for example, I mean, let's kind of spin out the story, um, if, uh, the Satanic Temple, and, you know, the, uh, Commission Against Breeders, uh, and the Commission for, you know, Healthy Racists Being Reintegrated into Society, like, you know, whatever, right, if they all start, um, various adoption agencies in, uh, South Dakota, and contain a sincerely held statement of moral principles and religious beliefs that say, you know, we're not going to place children in, you know, the following circumstance.

We're not going to place them in heterosexual households. We are not going place them, you, in certain racial households. Whatever, right? Like, in ways that are designed to expose how ridiculous this law is. And the state nevertheless sanctions those agencies anyway, right. Because remember, I read you the definition of adverse action. It is designed to be as broad as possible. If If that were the case, then you would have a very, very good First Amendment basis to to strike down the law in its entirety. Right. It would be it would be the city of Hialeah case.

You would say, look, the law says on its face that it want to protect, they quote, sincerely held religious belief or moral conviction of any child placement agency. But in reality, what they mean is we want to protect the beliefs of Christians and in particular right wing evangelical Christians. And we don't care about competing religious beliefs. And, you know, we can demonstrate then that,

1:00:19 Thomas: Yeah.

1:01:05 Andrew: You Know, that that language, the bill was not intended to do what the bill says. Right. And without.

1:01:11 Thomas: Let me ask you this, then let's say they call your bluff, though. Let's say they're like, well, you know what, these are, these are just kind of trollish things, these aren't real sincere adoption agencies. Let's just say, yeah, you're fine. And then it's consistent. Are they OK then? Or is there going to be grounds to say the bill is still discriminatory because it's allowing people to discriminate against protected classes? Or will that not work in South Dakota?

1:01:12 Andrew: Yeah, go ahead.

1:01:39 Andrew: I think those cases, I mean, it would not be hard to imagine the, you know, all racist, you know, religious, racist, white supremacist adoption agency. And that that would certainly be unconstitutional. But Even before we get there, I want to point out, prior to that lawsuit, that if, if you were to, if our friends at the Satanic Temple were to establish a gay only adoption agency in South Dakota, let's say, which I think would be a fantastic idea, uh, don't take legal advice from a podcast, but fantastic idea, um, the, the same Section Three, uh, has a provision that says if a child placement agency declines to provide any services, the child placement agency shall provide in writing information advising the applicant of the Department of Social Services website and a list of licensed child placement agencies with contact information.

So, in other words, um, we've already established that having the Satanic Temple all gay for the placement of adoption is not the base that the state can't discriminate against granting their license. So it's got to grant them the license. Then they would have to then they would be on this list of approved vendors. And so then when your gay couple would go into an adoption agency in South Dakota and then they say, oh, I'm sorry, we're not going to place you with a gay couple, they are required. It says shall provide in writing

1:01:54 Thomas: Right. Yeah. Right. Mm hmm.

1:03:07 Andrew: The list, the website and the list and contact information of other of other providers. So, I mean, I think I could imagine nothing greater than, you know, requiring somebody who was put into writing.

1:03:21 Thomas: Yeah, yeah. Here's the number for Adam and Adam adoption agency. Yeah.

1:03:28 Andrew: Yeah, this, this is why I think they are, uh, the Satanic Temple is performing a a useful service because the folks who who wrote this bill, uh, were not thinking that they have Satanists in the the state of South Dakota they

1:03:33 Thomas: Yeah, yeah.

1:03:43 Thomas: Well, another angle that might really just piss the Christians off is to say, look, here's an adoption agency. We think white privilege is just too toxic to, you know, raise a child in. So we're only allowing mixed race or, you Know, minority couples to adopt. That would probably get their attention.

1:03:58 Andrew: That would That would absolutely get their attention. And look, like the the Supreme Court, it's part of why the language is, you know, stood out to you and stood out to me. Courts have already been very, very reluctant. The reason that sincerely held religious belief has has proliferated through the law is that, as you know, in the history leading up to the passage of RFRA, right, this was all of the cases that predated Employment Division v. Smith, in which Antonin Scalia essentially said, I'm going to overrule the free exercise clause of the First Amendment because it doesn't comport with what I think the framers would have wanted. And then as a result, Congress passed the Religious Freedom Restoration Act. Lots of states passed the equivalent that was designed to revive the pre-Employment Division versus Smith standard in which the court used sincerely held religious belief. And those cases, principally in the 1970s, are abundantly clear where the court's like, hey, look, like, we are not, the only thing that matters is whether you are sincere in the beliefs. We are not going to look at the beliefs themselves.

And how do we test whether you're sincere in the beliefs? We test to see that you are acting consistently with them. Right. So, you know, it would be very, very difficult if you were, you know, if you professed sincerely held Jainism, but, you know, didn't wear the mask and, you know, ate barbecue every night.

1:04:42 Thomas: Yeah,

1:05:38 Andrew: And, you know, it would not be hard to say that seems like it's pretextual. But nobody would look into sort of the underlying contents of the beliefs themselves.

1:05:47 Thomas: So did you, did you mention whether or not this is passed, this is proposed, this is

1:05:51 Andrew: Oh, yeah. No, this is law. This is signed into law by the governor. This is not it's part of why I took it, because, you know, we get a lot of questions where a lot of ridiculous bills get proposed by state legislatures. Unfortunately, most of them go nowhere. But no, this this is passed, signed into a law and is in effect now.

1:05:52 Thomas: Oh wow yeah, so are you hoping for or anticipate a future Supreme Court case relating to this, or state Supreme Court at least.

1:06:16 Andrew: I don't believe, yeah, I don't believe this law will survive. I certainly hope as a spectator, but as somebody who does not live in the state of South Dakota, but wishes nothing but goodwill to the residents of South Dakota, that the Satanic Temple or perhaps some other organizations will we'll expose sort of how preposterous this bill is.

1:06:19 Thomas: Oh, good.

1:06:40 Thomas: Yeah, absolutely. All right. Well, thanks for breaking that down for us. And you know what time it is, Andrew. You know what day it is. It is,

1:06:49 Andrew: Hall of Fame Patron Friday.

1:06:51 Thomas: Hall of Fame Patron Friday. Exactly. So let's let's thank our Hall of Fame patrons, our all-time greats over at patreon.com/law. Why don't you start? Normally I start, how about we switch it up

1:07:02 Andrew: So thank you to Roger Metcalf, Danny Rosari, Eli Bosnick, Dave Nichols of Positively Doubtful Podcast, Steve Sigmund. Thank you to Jim Grove, Desecrator, Patrick Fussell, Amanda Lipnack, Heather Loveridge, Geeker 41. Thank you, Sean Pitti, Ian and Allie, Matthew Vernon, Violet Page Hall, Heath Enwright, Jeffrey Maynor, The Wayward Willis, Detective Matthew Maxson, Zena, Dave Lovely, Danny Baker at Combat Nonsense. Sense, thank you to Charone Frankel, the host of the delightful podcast he, Habeas Humor, uh, and and indeed it is, uh, Squick Thinger, Ian Ryan, Matthew Hillier, Aaron Graddy, thank you too, the You Are Here sci-fi audio drama, thanks to Brandon Smith and thanks to TV Is My Girlfriend friend

1:07:53 Thomas: Thank you so much, C6, Sarah Hunter, Ash Torstein Skurve, Adopt a Homeless Pet and Oppose Declawing and Ear Docking, John Bodley Esquire, Kaylee Reiser, Jeff S., Sakashite Fukasumi, Philip Strongberg, Michael Schaefer, Michaela, The Electronic Frontier Foundation at EFF.org, The Inciting Incident Podcast, Marissa Alexa McCool and her fabulous snarky publishing stuff, TheNetSecHeathen, Jessica Wilson, Frederick Alstromer, Revan, Michael Rops, Conrad Michaels, and Zabby. Thank you guys so much for making the show happen. I hope you enjoy the bonus content and the shout out, the early answers to TTTT to TTTBE, which the extra T's are somehow some other T words for failing and not passing and miserably. I'll think of them later. But yeah.

1:08:46 Andrew: I'm thinking of the the Simpsons episode with uh the the barbecue invite was like, come to Homer's BBBQ, the extra

1:08:53 Thomas: Oh, yeah. Why did I just see that on? Yeah, I just saw on Twitter or something. That's funny.

1:08:56 Andrew: B is for BYOB, Be.

1:09:02 Thomas: So maybe we'll do that. The TBTT, BYOB, Thomas takes the bar exam. Let's have question number 19.

1:09:06 Andrew: All right, Thomas, are you ready?

1:09:13 Thomas: No, but that's never stopped me thus far. So here we go.

1:09:14 Andrew: Okay, good.

1:09:17 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:09:22 Andrew: Two companies, a construction company and a landscaping firm, got into a contract dispute over the nature of landscaping services that had to be provided to the construction company. The landscaping farm was incorporated in New York and did all of its business in that state. The construction company was an LLC that had been filed in New York, with its members being domiciled in Pennsylvania, Vermont, and Virginia. The landscaping firm filed a breach of contract claim in federal court in New York, claiming diversity jurisdiction with an amount in dispute that was in excess of $100,000. The construction firm filed an order to dismiss the contract, a motion to dismiss, claiming that the landscaper plaintiff did not have diversity jurisdiction. Will the court likely grant the motion to dismiss? Okay.

1:10:07 Thomas: Wow.

1:10:07 Andrew: So yeah, this is a, this is an inside baseball procedural kind of question.

1:10:12 Thomas: This is going to be a hard one to keep track of because I don't get to see it. So remind me who's suing whom and which one was which in terms of where they were.

1:10:16 Andrew: Okay, right. So construction company engages the landscaping firm for business. Uh, the landscapping firm sues the construction company. Let's for non payment, right? For breach of contract. Okay. The landscaping farm incorporated in New York did all of its work in New New York and Susan, New York. Okay. The construction company was an LLC. The LLC was filed in New York, so rather like your Serious Pod LLC was filed in California, right? So with its members being domiciled in Pennsylvania, Vermont, and Virginia. Again, perfect. There's nothing wrong with having a three-member LLC. They live in Pennsylvania. Vermont and Virginia, but they want their LLC to have been filed in new York. Now, Now, as a practical reason, there's no way on earth you would ever do this. But but but those are the facts. So as you may recall, I will give you this one. But for our listeners who might not have been with us from the beginning, diversity jurisdiction is, uh when you have citizens, suits between citizens of different States. Um, and, the uh, amount in controversy requirement is $75,000.

1:10:28 Thomas: Okay. Okay, sure. Yeah.

1:11:27 Thomas: I was, you know what? I remembered that. I I was wondering what the hundred thousand, cause I thought it was 75,000, but okay.

1:11:27 Andrew: So yeah. Yeah. Yeah, it's just, it's, it just meant to say, look, this is a question about where are the parties domiciled.

1:11:37 Thomas: But I totally did remember that because that's the amount people need to sue us for in order. Nevermind. I'm sorry. It was revealed too much. Okay, good. So the question is, will it be dismissed or will it being upheld? Gotcha.

1:11:39 Andrew: Right. Yeah. Right, will the court likely grant the motion to dismiss? OK, here are our answers. A, yes, because there is clearly no diversity in that the construction company LLC and the landscaper corporation were both registered and filed in New York, making them citizens of the same state. B, yes, because diversity must be between natural citizens and business entities are not entitled to diversity, but must find some other reason for federal jurisdiction. C, no, the motion to dismiss is premature and must wait until all discovery is completed before it will be considered. Or D, no. The plaintiff is a citizen of New York and the three members of the LLC are each from different states which gives complete diversity of citizenship.

1:12:34 Thomas: This is a really hard one. I would say definitely not C. That's the only one that I know has got to not be true. Gosh. Okay. Okay, so D, know, I was leaning toward a no answer because I thought the amount is enough and you do have members in different places, so I thought it was going to be a no answer, but can you read D one more time?

1:12:59 Andrew: Is no, the plaintiff is a citizen of New York. And the three members of the LLC are each from a different state, which gives complete diversity of citizenship.

1:13:10 Thomas: Diversity of, see, but that doesn't, that answer doesn't sound totally right to me. Ah, it gives a complete diversity of citizenship. Relationship And does it say in the question, I mean, they're suing the company, right? Or I'm not, I can't remember if it's too much of a hint to know whether that not that matters, but, uh, You know, okay. I, I probably going to embarrass myself yet again, as I have many times, this has got to be for me, one of the hardest ones I've had probably the hardest, because I feel like I've got all the information in my brain somewhere, but I'm just now I'm nervous about getting it right. I'm going to hope, even though it's the amount is right. I, I hope that I, uh, I think that because the, the business is being sued and everybody is in New York, I don't, I I'm going to go with a, I'm gonna go with A it's hard.

I can't, there's no easy answer. I I thought It was going To be a no answer, but it's definitely not C and then D didn't seem right to me either. Then I was like, is it a yes answer? The problem is the yes answers are kind of similar to me. Should revert me back to D or if I need to pick the best yes answer. In which case, if it's B, I'm going to be upset. I'm gonna go with A. A. And yeah, I'll go with A. This one is tough. I feel I'm pre-embarrassed for the fact that you're going to lecture me on Tuesday that I should have gotten this right because you've told me all this before. So I'm a pre-embarassed to say A.

1:13:23 Andrew: Yeah. Yeah. Yeah.

1:14:40 Andrew: And if you would like to lecture Thomas on Tuesday, all you have to do is get the question right, either by answering A and having that be the correct answer or by giving us the actual correct answer if Thomas is wrong. Play along with us on Twitter. We announced the episode on our Twitter feed at at Open Args, quote that announcement and include in your quote and retweet the guests and the reasons therefore, if you can fit it in, the hashtag TTTBE and, and we will go through that. We will pick out the best answer, and then we will give you a shout out when we announce the winning answer next Tuesday.

1:14:42 Thomas: Be pre-emparrassed as well. Yeah.

1:15:25 Thomas: And the same goes for facebook.com slash open args, which you should be liking and following, of course. And you can do the same thing where you share dot, dot, and put your answer there and feel Feel free to taunt me for how ignorant I've been in the last few questions. I've definitely gotten wrong. This one was a hard one. We'll see. I hope that somehow I, you know, even though I had to think way too much about it, hopefully I ended up on the right spot. But I don't know. This is I have no confidence in this answer. So pick other answers, everybody.

1:15:56 Thomas: All right. Well, that does it for the show today. Thanks so much, Andrew. Thanks so many listeners. And most especially, thanks you so much to our patrons over at patreon.com/law. we will see you next week all

1:16:15 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.