OA105: More Gay Wedding Cakes

Transcript

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

[0:00:02] Is that why you hit your wife? Withdrawn. Is that why you drink and pop pills? Withdrawn. Are you a virgin? Withdrawn. [0:00:19] It says here you robbed a hospital. Why'd you do that? Yeah, I'm not guilty. That's not what the other lawyer said. [0:00:30] Actually, I was going to stay in my office tonight and work on my law blog. Of course, the Bob Loblaw Law Blog. Wow. You, sir, are a mouthful. [0:00:45] The jury is instructed to disregard its own testimony. Your Honor, the prosecution rests. [0:00:54] Welcome to Opening Arguments, the podcast that pairs an inquisitive interviewer with a real-life lawyer. This podcast is sponsored by the Law Offices of P. Andrew Torrez, LLC, for entertainment purposes, is not intended as legal advice, and does not form an attorney-client relationship. Don't take legal advice from a podcast.

0:01:17 Thomas: Hello, and welcome to Opening Arguments. This is episode 105. I'm your host, Thomas Smith. That over there is your other host, Andrew Torrez.

[0:01:24] How are you doing today, Andrew? I'm great, Thomas. How are you? You? Doing great. We got a lot of good stories to talk about today. First up, we are going to have a little bit of an OA community Facebook page lightning round. I'm going to answer a couple questions that you've seen there and remind everybody to check out the Opening Arguments Facebook community. I know some people don't have or don't like Facebook and, you know, I respect that. But yeah, for everybody else, we're going to be hanging out over on that community because because it's really fun. And also in the main segment, we're going to talk about gay wedding cakes. Andrew, I thought we were done with this. Is this still going? Is there still some controversy? I thought we solved that.

[0:02:04] Yeah, apparently it's still a thing. So we're going to break it down. It's 2017. We're still talking about gay wedding cakes, but unfortunately we have to. And then in the last segment, we are going to take a trip to Yodel Mountain, everybody. I can't wait to talk about this one. Trump might've made some some secret changes to the Magnitsky Act. And we're going to survey the scene. We're going to climb atop that mountain, or we'll see if we get to the top or not. We're going to hear some yodel music. So, that's our agenda for today. Can't wait. Let's get to it. First up, Andrew, listener questions.

[0:02:39] He who questions training only trains himself at asking questions.

[0:02:45] What? Yeah, I thought it would be fun to take a couple of questions that were posted

0:02:51 Andrew: In the Opening Arguments Facebook community. If you haven't joined, you really, sure, if you, if you use Facebook at all, we've got, uh, hundreds, maybe over a thousand people in the Opening Arguments community. And really, what it is, is it's Thomas and I drop in and we answer some stuff, but, but, but basically, it's a place for fans of the show to get together and talk about things between each other, which, in my view, like, that's just one of the great

[0:03:22] kind of unintended benefits that's come about from doing the show is, you know, we've brought people together with their shared love of law geekery, and I couldn't be happier. So, I have been criticized in our q and a's for being unable to do a lightning round, and I'm going to prove those criticisms correct, uh,

[0:03:40] by trying to do a lightning round. I was wondering where you're going with that. I was like, uh, you can't do a lightning round, let's face it, there's no, you're unable. So, I thought we'd tackle a couple different questions, get more people bang for their buck out of that OA Facebook group, and, uh, and see if we can't blitz through these. So, let's try. First question: Using the Congressional Review Act, couldn't the Senate, with three Republican defections, overturn

[0:04:06] Trump's actions on DACA and and the transgender ban? So, interesting question.

0:04:12 Andrew: Glad that people are still remembering the significance of the Congressional Review Act, which we

[0:04:18] discussed first in opening arguments number 61. Lightning round answer for me is yes. That's my attempt at it, but am I wrong? Let's find out. No, the answer is no. So, CRA is 5 U.S.C. 801 at SEC, and really the two questions that are applicable here are, first, is what you are trying to do, what you're trying to overturn with the Congressional Review Act, is it a rule? And for something to be a rule, it must be promulgated pursuant to the Administrative Procedure Act, 5 U.S.C. 551 at sec, and executive orders are

[0:04:57] not rules under purposes of the APA because the U.S. president is not an agency. Yeah, so now, when the president directs an executive agency to do something, ultimately, that agency might engage in its own rulemaking. So if you're not happy with that answer, and you might not be happy with that answer, because that there could be actual agency rulemaking in connection with both of these two things, then we get to the next issue, which is how would the CRA work? Remember that the Congressional Review Act results in a piece of legislation.

The unique benefit to Congressional Republicans right now, in terms of overturning agency filings, is that you can, uh, get a CRA passed, it's got a fixed period for debate, so it cannot be filibustered, so it can be voted on, uh, with ordinary 50 votes. So theoretically, could you get 51 votes getting three Republican defections? Maybe, I mean, I'm skeptical about getting three Republican defections on anything, but that would only start the problem. Of You would then pass a bill, right? You'd have to get through the Republican house, which is overwhelmingly Republican, you'd have to get three defections in the Senate, that would then give you a law, which would go to President Trump, which he could then veto. And so, Section 801 a3b of the CRA says, if Congress passes a joint resolution of disapproval relating to the

0:06:24 Andrew: Rule, and the president signs a veto of such resolution, the earlier date on which either the House of Congress votes and fails to override the veto of the president, or 30 session days after the date on which Congress received the veto and the objections of the president, is at the time in which the CRA fails to become law. So

[0:06:44] and the administration and the order takes effect. So yeah, when I described the CRA in a previous episode as like a one-way ratchet, it really is. It is useful for making administrative agencies not do stuff. It is not a useful tool for helping them to do stuff. And that's why Newt Gingrich wanted to cram it through Congress. Don't ask me why Bill Clinton didn't veto this, but it has come back to haunt us with a vengeance. It is easier to overturn, overturn, administrative

[0:07:16] findings than it is to to uh nudge them in the right direction. So, well, but number one, would DACA be, how would, how does that apply here? I don't understand, because this is DACA, and the transgender doesn't apply, that right? Like I said, so the way in which it, it could potentially apply is if, uh, in light of the Sessions memo, the Department of Homeland Security engages in some kind of administrative rulemaking, uh, but they don't necessarily have to, right? Like the original DACA, there was no, uh, DHS or DOJ rulemaking, it was just

[0:07:47] uh, became part of the internal policy, that's part of the Constitutional. So you're saying they couldn't have proactively

0:07:54 Thomas: Like tried to make these agencies do certain things if they if congress wanted to because... Correct. Okay. Well, you know, I like to save my A game for the real bar questions. I get almost all of the fake ones wrong, but that's by design. I don't want to use all my good answers. So that's why I get all these ones wrong. Strategy, test taking strategy. Andrew, lightning question two, and I promise this is not for me or for a friend, but we We actually had a question about this and it could come up, you know, this is something that unfortunately a lot of women deal with online. If someone sends you a dick pic, unsolicited dick pic, you know, just, I don't know how many of those you get, Andrew, but I've gotten zero. But if you're a woman online, oftentimes you get a lot of these. If someone sends you one, can they then say that you are not allowed to publish evidence of it because then that would be revenge porn? Yeah,

0:08:49 Andrew: Really interesting follow-up question on our revenge porn law segment, because this is an area where the reverse side is obviously very different, which is to say, not only do I not get unsolicited dick pics, I don't

[0:09:09] get unsolicited pictures from women of their genitalia. That is much more in line with my personal preferences, is right. Like, that this is, this is something men do online to harass women, right? I'm sure you can find some bizarre counter examples, but by and large, it is a very common, obnoxious, uh, harassing practice that that men use, uh, against

[0:09:34] women online. And so, properly thinking, oh hey, now will men be able to use the revenge porn laws to say, oh, don't come after me, uh, you know, the laws that that we use to protect women to then hurt women. And the answer is, at least with respect to the California law, if you go back to the elements, that law had a five-part definition of revenge porn, or what was called non-consensual pornography, and, uh, those were: one, you have an image of the intimate body part of another identifiable person, check, dick pic qualifies; two, you intentionally distribute that image, check, yep; three, there was an understanding between you and that person that but the image would remain private.

And then, for, you, you know, or should know that the distribution of the image would cause the person serious emotional distress. And number five, the person actually suffers serious emotional distress. So, for example, I know there was a prominent female comedian. I can't remember who it was, who, you know, has a public, who has a policy of republishing the unsolicited dick pics that she gets with, you know, affiliated commentary. This might not be a bad time to link the, I think, one of the all-time greatest Bernadette

[0:10:48] Peters quote from Pink Cadillac, where she's approached by a flasher who opens his trench coat and says, "Hey, baby, what do you think of this?" And Bernadette Peters, in her inimitable style, leans

[0:11:01] forward and goes, "It looks just like a penis, only smaller," which I always thought was fantastic. Um, but no, so, uh, so, quick answer, if you get an unsolicited picture, there is no understanding, uh, between you and the person that that image would remain private, um,

[0:11:20] so what if, what if they, now this, man, sometimes we do a disservice and and make

0:11:26 Thomas: Criminals, uh, wiser, but what if they, like, like, we, when we hope Trump doesn't listen to this and, you know, figure out a way to make his immigration ban work or that kind of thing, but what if they, they send the dick pic with a note of like,

[0:11:38] "keep this to yourself" or something, would that qualify, do you think? Yeah, I mean, that, now you're litigating over what constitutes an understanding. Yeah, right. So, I, yep, that's what I'm doing. Yeah, bar question for Andrew Torrez, does that constitute an understanding? And I would say it might, or I mean, that's why I'm

0:11:58 Andrew: Saying you're litigating it. I could see arguments either way, and I would not want to say definitively it constitutes it, does, or definitively it doesn't. Guys, if you're sending dick, don't do that.

[0:12:09] Yeah, that's the best way to make sure. I hope we don't have any listeners who would ever do that. So, I'm

0:12:16 Thomas: Going to go ahead and say we're safe because we only have cool people who listen and who don't do crap like that. So, but also, this is going to vary by state, right? So, depending on the state you're in. Correct. Because a lot of states don't even have these laws. Most states do

[0:12:28] not. Right. And it's why I started with California. Now what matters, the state of the receiver or the sender or either? Good question. And the answer is the state in which the police have jurisdiction to arrest the person. Right. So, yeah,

0:12:47 Andrew: That's why, I mean, if you think about kind of the classic revenge porn cases, are not typically cases in which, you know, you have a long distance relationship going back and forth. They are, the, what was it, Rob Kardashian and Black China, like they both lived in Los Angeles, so it was not an issue, in, there was a, there was a real physical relationship that also had, you know, sending pictures back and forth over the internet, which is very different than, you know, cyberstalking somebody, and, uh,

[0:13:20] sending an unsolicited okay well uh that so that that applies I think I hope this isn't advice

0:13:26 Thomas: Anybody needs, but with how horrible men can be on the internet, you just never know. So there you go, women. You

[0:13:32] don't do that. Yeah. Or any receiver. That's the best answer to... Right. But also, for the other side, if anyone's receiving these, hopefully you're armed with a little bit of knowledge of how to proceed. And yeah, it's just like a penis, only smaller. Okay.

[0:13:49] Okay. Next lightning round question, Andrew. Okay. I'll tackle this one. You ask me. All right. The new Apple

0:13:55 Andrew: 10 iPhone has facial recognition software for turning on. No longer has the little central home button. So the question is going to be, are there potential issues of invasion of privacy where, let's say, the police arrest you, they seize your phone, and then they want to hack into it, they want to open it. We know they can't require you to put your thumbprint on it. We know they can't require you to divulge your password and open it up. Could they just hold the phone in front of your face and require you to open it up against your will? So Thomas,

[0:14:32] what do you think of that? Oh my gosh.

0:14:35 Thomas: Lightning round answer, probably they'll get away with it. That's mine. But I don't know. That's a tough question. Wow. I think that law is just not even equipped to deal with this currently.

0:14:48 Thomas: Oh man. Okay. I'm going to ask you, I'm going to, I'm going to throw it to you. You can be the legal expert for once. What

[0:14:54] do you think? Yeah, no, that, that I was glad you tackled it because that's as good an answer as, as I could give to the

0:15:00 Andrew: Law is not well prepared to, to handle this sort of thing. We know that one of the ongoing issues in search and seizure jurisprudence is expectation of privacy, and behaviors can affect whether you have an expectation of privacy. And so I think undoubtedly the facial recognition software is going to be used by law enforcement officials in this way. And if you ask me to, you know, come out, I mean, and the law is not prepared, we're gonna get arguments back and forth. But in the end, sort of the general trend, particularly at the Supreme Court level, for the past 35 years has been in favor of law enforcement techniques, sometimes egregiously and explicitly so, right, as we talked about with with respect to the Alex Wobble's case last week. So so you gave as good an answer as I could get. Mostly I took the question because I thought it highlighted a unique issue, but I don't have a good answer. Wow.

0:16:03 Thomas: All right. Well, see, there, I'm just as much an expert as Andrew, everybody. That's what I've learned from this.

[0:16:10] All right. That does it for our little OA community lightning round. Check out that Facebook page. Lots of fun, lots of people posting.

0:16:17 Thomas: It's cool. I'm really glad you thought of that, Andrew. I give you credit for that idea, unless you took it

[0:16:23] from Barack Obama or something.

[0:16:29] Facebook groups have consequences. Yeah.

0:16:32 Thomas: All right. Thanks for that, Facebook community.

[0:16:38] All right, I thought we were all done with the gay baked wedding cake controversy. I mean it's such an easy issue once you grasp a hold of it and actually look into the argument for me but

[0:16:51] What's going on? Why are we still talking about this, Andrew? Yeah, um, so the reason we're

0:16:57 Andrew: Talking about this, and and by this we mean the case of Masterpiece Cake Shop Limited versus Colorado Civil Rights Commission. It is currently pending before the Supreme Court. It's on the fall docket, and the

[0:17:10] what made news was that the United States filed an amicus brief on behalf of the cake shop. Right, so this is one of these classic cases. You have a business, uh, business is open and serving the public, and yet a bigoted asshole is running the business. And so I am actually going going to read the factual setup from the opposition to certiorari brief filed by the defendants

[0:17:41] in this case, so which is to say the, um, the Colorado, uh, Supreme Court, uh, ruled in favor of the, uh, the the two men who were discriminated against, uh, who were set to get married. And then, and this was appealed to the Supreme Court on U.S. constitutional issues.

[0:18:03] And the cake shop, aided by our friends at the Alliance Defending Freedom, that's sarcastic, those people are jerks, filed a petition for writ of certiorari, which was granted, and then have filed their brief arguing. Well, we're going to get into what they're arguing. So this is the fact section from that opposition to cert brief filed by the men who got married. In July 2012, respondents David Mullins and Charlie Craig were planning their wedding reception in Denver, Colorado. Craig's mother, Deborah Munn, was helping the couple shop for a wedding cake. The three of them visited petitioner Master Peak Cake Shop, a retail business in Colorado that sells wedding cakes and other baked goods to the public. Petitioner Jack Phillips owns

[0:18:50] and operates the company.

0:18:52 Andrew: Mullins and Craig expressed interest in buying a cake for our wedding. Phillips refused to serve them, explaining the company has a policy of refusing to sell baked goods for weddings of same-sex couples. Phillips did not ask for, and Mullins and Craig did not offer, any details about the design of the cake. Phillips was unwilling to make any cake for the wedding because they were a same-sex couple, and therefore any further discussion would have been fruitless. As the administrative judge found in the Colorado administrative proceedings, Quote, for all Phillips knew at the time, Mullins and Craig's might have wanted a nondescript cake that would have been suitable for consumption at any wedding, end of quote.

And I read a little bit of that factual background because I want to try and paint this argument in the most understandable light, which is to say, what happens is, in 30 states, you have robust anti-discrimination laws that apply to places of public accommodation. You can think about this, we've talked about the federal law and whether its prohibition on sex discrimination applies to sexual orientation and or to gender identity. Those are open questions. But by its terms, the federal law does not prohibit discrimination on the basis of sexual orientation. Hence, we had the

0:20:12 Andrew: Characterization of "no homosexuals need apply" is a valid sign for a business to hang

[0:20:20] out. Whereas if you have the proverbial restaurant and you put up a sign that says "no colored people can eat in this restaurant," that's an obvious violation of the Civil Rights Act of 1964. So with respect to gay people, their best hope for remedy that is clear are in states like Colorado that explicitly recognize sexual orientation as a protected class and as a basis for failure to

[0:20:53] discriminate. Then the question becomes, what does it mean when you offer a kind kind of service to discriminate on the basis of a protected class versus the argument that's being raised here, being forced to speak or to otherwise, you know, put, use your creative talents to endorse something that you don't agree with. So let's start with kind of the most obvious example. If you're a gay couple, you cannot sue the Washington Times or Breitbart or Fox News for how those news outlets describe homosexuality, right? You can't say, hey, look, you serve the public, everybody gets the newspaper, and you need to make sure that you describe homosexuality in X way and

[0:21:50] not like as an abomination against nature. Well, it's not a place of business, right? I mean, that's part of it. Yeah, but it is a service, right? So I'm trying—what I'm trying to get at is the core, because I don't want to say that the notion of compelled speech, which is part of the issue here,

[0:22:09] is one that is entirely without merit, right? You cannot force the newspaper not to describe homosexuality as an abomination against God and nature if that's how the newspaper wants to distribute it. But what you can do is you can say, if the newspaper is selling newspapers to the public,

[0:22:27] they couldn't say, oh, yeah, we're not going to sell you the Washington Times if you're gay, right? Again, you have to offer the same service in the same way to members of the protected

[0:22:41] classes as you do to everybody else, right? That's the way to think about these anti-discrimination statutes. So the way in which it becomes slightly more – there's a greater potential for obfuscation, because I think the issues are clear, is when you are in a business

[0:23:00] that serves the public that now adds in a creative expressive component, right?

0:23:06 Andrew: And so the question is, is crafting a wedding cake for

[0:23:13] a gay wedding, is that free speech such that you are engaged in the forced requirement to speak in order to produce a cake to celebrate a gay wedding? I should mention that this is the second ground for the second question asked on appeal. The first question asked is a free exercise

[0:23:38] clause, and I am happy to report here that unless the Supreme Court is, – I cannot – even this Supreme Court, I cannot possibly imagine will entertain the free exercise clause argument because they're bound by Antonin Scalia here, right? Antonin Scalia in Employment Division v. Smith said, a neutral law of general applicability that happens to burden your religion is

[0:24:03] valid unless the the the law itself lacks a a rational basis, right? So by their own, by their own petard, exactly. Thank you, Antonin Scalia. And Colorado is one of the states that does not have a state Riffra. So the free exercise claim, claim here is defunct, DOA. I am confident, I am more confident in that than I am in in any prediction I have made recently. I will point out I thought Trinity Lutheran was going to go the other way, so. So, you know, you never can tell, but current precedent is really, really strong that there's no free exercise claim.

So then the question is, is there a First Amendment free speech claim, right? And I've tried to make this, it's why I went through all the setup. It's why I gave the Washington Times example. I've tried to be as sympathetic as possible. Sympathetic is the wrong word, because the people behind this are anti-gay bigots, and I'm not sympathetic to them at all. Gotcha. And, uh, and I, I want that to be clear, and if you're listening to the podcast, any of you, you know, whatever our, our political views, I, I think are pretty clear,

0:25:14 Andrew: And I think people who are out there trying to, uh, to force, uh, people who are gay into second class, uh, citizenship in social ways are repugnant and awful, and I will call them bigots on this show. But with respect to the argument, there is an argument that says

[0:25:30] that is well, well-established in the case law that says, uh, you may not compel someone to engage in speech, right? That the core aspect of First Amendment freedom of expression is the right to hold your opinions and express them and authentically express your opinions, right? And that, and if the government forces you to say something that that violates the First Amendment.

[0:25:55] And I agree with that. Now the question is, how does that apply to cake bakery, right? We can come up with ways in which it might apply to cake bakery, right? So it certainly might apply if I go into a cake shop and I say, as an atheist, I want you to bake a cake that says

[0:26:15] "the Bible is full of lies." Yeah, and and then I'm going to come pick it up, and you could say, no, I'm not, I'm not going to do that, right? I'm not going to bake a cake that says the Bible is full of lies. And I would not have – and assuming that the law protects religious identification as a protected class, I wouldn't have a very good argument for that, because the cake baker would have the same, – would be able to use the

[0:26:40] same argument in response that we have used on behalf of individuals seeking equal access, which is to say, hey, look, I bake cakes, and I do not bake cakes that have anti-religious messages on them. I'm happy to sell this atheist another cake, uh, and I wouldn't sell an anti-religious cake to anybody, right? I, I don't sell it to atheists, I wouldn't sell, I

[0:27:05] wouldn't sell "the Bible is full of lies" to a Muslim. Isn't that so much like, that I wouldn't sell a gay cake to anybody? I wouldn't sell it to a straight person, I wouldn't sell it to you. So then, so, so now the question is, what makes something a gay cake, right? And the answer is, it's attracted to other cakes of the same, right, exactly. Yeah, so, yeah, it, it's why I think the factual background was important, uh, of these guys, never got a chance to say what kind of cake they wanted, right? Because I, I, do, do you think if they had said, hey, look, what we want is, you know,

[0:27:42] we want a cake that around the side says, you know, long live gay marriage, and, you know, doing it in the butt is awesome, like whatever, right? Like the baker would have the opportunity to say. Brian, grab that audio clip for later use. Would have the opportunity to say, I wouldn't sell that kind of cake to anybody, right? Yeah, um, but if, if what you want is, you know, a white cake with pink frosting and little bells. Well, most wedding cakes don't even have words on it, right? I mean, they're just ornate, artistic depictions. What if

[0:28:19] it was like just two male names? Is that going to be enough in your book to? As it turns out, there's a reasonably recent 2006 case called Rumsfeld versus Forum for academic and international rights that

[0:28:32] I think is more dispositive here than the scholarship case was in Trinity Lutheran, which is to say that I suppose the Supreme Court's opinion could just ignore it. But

[0:28:44] I think it's pretty close. So what happened in the Rumsfeld case? You had schools were subject to an executive order on non-discrimination, okay? And in fact, it began as an executive order, law. It was called the Solomon Amendment, okay? And that required law schools to provide equal access to military recruiters and non-military recruiters, okay? And many law schools said, because this was 2006, we disagree with Don't Ask, Don't Tell. So we don't want, because gays and lesbians are forbidden from serving openly in the military as of 2006, we don't want to bring those employers onto our campus, because that would implicitly endorse the message of, we think it's okay to discriminate against against gays and lesbians from serving openly combat. So law schools got together and they challenged the Solomon Amendment on free speech grounds, right? They said requiring them to endorse the military recruiter's message that gay people should not serve in the the armed forces, by allowing them access to campus, was a violation of free speech. In my view, this case is virtually identical

[0:30:03] on free speech grounds from the argument being raised by the cake bakers, right? Once you Take out the religious free exercise clause, which we've all already said that's covered by Employment Division versus

[0:30:15] Smith. Yeah, thanks, Galia. He covered that one for us. Okay. Okay, moving on. Right. Now you're left with, well, if I put my artistic work into baking this cake and I give it to you and it's shown at your wedding, that's

[0:30:27] me implicitly endorsing the message that gay marriage is okay. Right? All right. That is, in my version, a weaker argument. I could see the court saying, no, no, Solomon Amendment,

[0:30:40] we're going to let the law schools block the military from recruiting on campus. But uh yeah you still don't get your, you know, gay cake endorsement, like that's way too attenuated, right? But it's at least as good an art. Right? You cannot, there is no way that you could say the law schools have to let the military on campus but cake bakers can discriminate against gay people, right? And in fact, here's what the Supreme Court said in that Rumsfeld versus FAIR: "The Solemn Amendment regulates conduct, not speech. It affects what law schools must do, afford equal access to military recruiters, not what they may or may not say. Congress, for example, can prohibit employers from discriminating on the basis of race.

The fact that this will require an employer to take down a sign reading 'white applicants only' hardly means that the law should be analyzed as one regulating the employer's speech rather than conduct." Or further acknowledge that the school's assistance to recruiters often includes elements of speech. For example, schools may send emails or post notices on bulletin boards or on an employer's behalf. But this is, quote, "a far cry," end quote, from being required to pledge allegiance to the flag or bear a state motto on one's license plate. Right. Other examples of compelled speech. Yeah. The court in the Rumsfeld case explained that the Solomon Amendment, unlike the laws at issue in those cases, does not dictate the content of the speech at all, which is only compelled if

0:32:06 Andrew: And to the extent that

[0:32:08] the school provides such speech for other recruiters, end of quote. And in my view, end of case, there is, yeah, case closed. There is, you want to argue that putting

[0:32:20] a, again, I don't, most wedding cakes don't have names on them, but you know, you want to argue that putting Jeff and Joe on the cake has a speech element. That is a far lesser speech element than the, no, no, look, I put up this sign that said only white people need apply. And you're making me take that down. Or you're making me post a sign that says we are an equal opportunity employer, right? Like, every aspect of anti-discrimination law carries with it something that you could argue that has a speech component, that has an endorsement component to it. But the Rumsfeld court was very, very clear that, looked like, that's not enough for it to count as compelled speech.

I'm sorry, Harvard Law School, that you have to let the military recruiter onto your campus, but that doesn't mean that you are endorsing the message that the military recruiter is stating. It just means that you are offering the same level of access to your services, to the military recruiter, as you are to the non-military recruiter. And in my view, on the speech grounds, that is a no-brainer. I think that also kind of knocks out the argument we've heard to the contrary when these cases have come up previously, even in the skeptical community, about like, oh, well, you know, if you have to do X for Y, then what happens when I go in and I want you to make a cake with a swastika on it? And, and, and let me just say, very, very clearly, um, there

0:33:47 Andrew: There are two reasons why that's stupid. The, the first is, as we just discussed, you can have a policy of not selling swastika cakes to anybody. Yeah. And the second is Nazis are not a protected class. So, uh,

[0:34:00] there's no, there's, they're not right now, but under this administration. Yeah, right, seriously. There's no danger in any kind of slippery slope here. We have painted a very, very clear slope, and that slope is, if you offer a service to the public, you must offer that same service equally to everyone, and you may not discriminate against individuals who are a member of a protected class in the offering of that service, right? And that second part is important, we've talked about this before, because every business engages in some kinds of of discrimination, right? Like, we discriminate, if you, if you open a, a shop, right, a convenience store, you discriminate against people who don't have money, right? Like, you can say, we're going to let people into the shop who have money and buy things, and we're going to kick people out of the shop who hang around and don't buy things, right? And that's why, you know, it's, it's not sufficient

[0:34:58] to just say, uh, you may not discriminate against anyone. There, there, there may be some kinds of discrimination that that take place, but when you have against a group that is enumerated in the list of protected classes, then you have to pass strict scrutiny, which is almost impossible to do, or else it's prohibited. And that's why, I mean, a lot of people, we've gotten this question before, like the sort of, like, I don't understand why we would have protected classes at all. And the reason why you have protected classes is because we want bakers to be able to discriminate

[0:35:35] against Nazis, right?

0:35:37 Andrew: What we don't want is, and that also goes to, I guess, the second argument that you sometimes get, which is the, like, this is America and I should be able to serve whomever I want. And, you know, we've hit that one at great length, but it's sort of worth repeating that no, like we've said

[0:35:56] as a society, we would rather suffer the loss of the freedom not to hire and not to serve food to black people than have a society that has institutionalized discrimination protected by law as a property right and as a business right. Right. So we've said, no, you know what? Like, going into business, serving the public carries with it certain social obligations. And one of those social obligations is a general compliance with the anti-discrimination laws is saying, you know what? I'm serving the public. And that means serving the public. That doesn't mean just serving white people. Doesn't mean, in 30 states, just serving straight people. It means serving the public. And again, you get a real simple solution to all of this. If you're super duper Christian and you hate gay people, like, maybe find a different profession to be in, right? Maybe don't make wedding cakes.

[0:36:52] At all, uh, you know, if you're a florist, maybe don't sell flowers on Valentine's Day. I don't, you know, I don't know. But, uh, but as long as you offer the service to one group of people, you've got to offer that that same service equally to other groups of people. So there you go. All right, well, are you making, make any predictions on this, is this something that, yeah, I will confidently make a prediction on this, uh, hopefully I'm learning from my Trinity uh Lutheran predictions. I think this is going to be five four. I say that because of the factual distinctions that I drew at the beginning that, that there is, right, unlike the florist, like, it's really hard to argue that there's a lot of expressive content going

[0:37:36] on in, you know, handing somebody a bunch of flowers, um, the, the cake design, we have, you know, our assistant Alicia is a, um, world-class cake designer, so there was certainly some creative component that goes into it that I think can be used to obfuscate on behalf of of the four justices who are very clearly activists in

[0:38:01] favor of increasing the role that religion plays in public life. They've stated in print that they are accommodationists on the First Amendment's religion clauses.

[0:38:14] So I think you're going to get those four votes, Roberts, Alito, Gorsuch, and Thomas. It's going to come down to Anthony Kennedy. Anthony Kennedy has been a very

[0:38:23] reliable vote in favor of LGBTQ rights for a decade, and, uh, I think he's going to come out that way on, on the implications of, of the free speech aspects of this. I think the Supreme Court will have no difficulty rejecting the free exercise clause. I mean, you might, you know, who knows what you get with Clarence Thomas. Yeah. And, and Neil Gorsuch is an activist of, of the highest order, but

[0:38:47] uh, but I, I don't think you'll get Roberts even on the, uh, on the free exercise clause, but I'm, I'm hoping, I'm hoping we get, we get Kennedy on, uh, on the freedom of speech, uh, claim, and I will point out if we get Kennedy, even if there is a change, there's a vacancy and a change in the Supreme Court during the pendency of this, right? A 4-4 decision means that the Colorado, the Supreme Court opinion

[0:39:12] stands. So, you know, the question is, do they get five votes? And I don't, at this point with this alignment, I don't think it's likely that they'll get five votes. I hope that's not just me being optimistic. Yeah. Yeah. I mean, I don't know if we've been tracking all your Supreme Court predictions. I do remember, you

0:39:32 Thomas: Know, the religious one, the playground one didn't go your way, but that was just a really horrible decision. So I hope that that was just the Supreme Court messing up and this one will go the

[0:39:44] way you think it will.

0:40:08 Andrew: Because nobody was there to say, hey, look, you've got to think about this, that, you know, you are creating a new right for social institutions that don't pay taxes. Are you sure you want to do that? Um, and you know, I would have made that

[0:40:21] argument at court and why didn't they ask you? You would have done it. Darn it. Yeah, they should have. There we go. All right, I'm I'm optimistic on this one and look, like the arguments, the the the, well, we've been through it, that, all right, well, uh, keep on refusing to serve, uh, Nazis, everybody, because they're not a protected class, so there you go. Yeah, seriously. All right, thanks for taking us through that, Andrew, because people have got to know whether or not their president's a crook. So you're not aware of any context during the course of the election? How many times do I have to answer this question? Can you just say Russia is a ruse? I know you have to get up and ask a question.

[0:41:01] So important. Russia is a ruse. Well, I'm not a crook.

[0:41:07] All right, Andrew, I, you just heard the music. You just heard the music. Are we, how far are we atop Yodel Mountain? What's going on with this Magnitsky Act? Yeah. So the Magnitsky Act is an act that was passed in 2012, and it

[0:41:25] is at the top of Russia's agenda to get overturned. The Magnitsky Act targets the transfer of funds with individuals who have violated human rights. It arises out of the case of Sergei Magnitsky, who was a Russian lawyer, and he had a client who was a foreign investor in Russia. His name was William Browder, and Browder alleged that Putin's government was essentially stealing the money that he had invested. Magnitsky investigated, filed suit in Russia, in which he alleged that officials from the Russian Interior Ministry used forged documents to claim that they owned part of Browder's hedge fund, and then sued the government saying that they had stolen $230 million for them. Wow. And so when Magnitsky sued, he was then arrested by Putin's government. He was hauled off to prison. Oh, this is terrible.

0:42:31 Thomas: I heard an interview about a guy, wrote a book recently about it, and I heard an interview. I kind of wanted to check out

[0:42:37] the book. It illustrates just how horrible Putin is. Yes. Yeah. So they took this lawyer. I mean, you know,

0:42:43 Andrew: This is right. This guy is, you know, me, right? Like he's, he's a lawyer filed suit against government. He's 37 years old and he was hauled out of his house, thrown into a dank Russian prison. And he developed pancreatitis, gallstones, and

[0:43:03] the guards refused to bring him medical help while he was screaming.

0:43:09 Andrew: And so he was found dead, chained to his bed in a pool of his own urine. And that was bad enough that in the United States, there was a bipartisan

[0:43:21] agreement to pass what was called as the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012. 12. Okay.

0:43:34 Thomas: Yeah, and it wasn't easy to get past, there are people who, after all that, how horrible that was, there

[0:43:41] were people that still took some convincing in Congress to to do it, but anyway, separate, separate issue, correct. So

0:43:47 Andrew: Um, the Jackson-Vanik amendment, uh, part was to repealing that normalized trade relations with Russia and with Moldova. So that was kind of the the concession, as you point out, there were there were folks who were unwilling to sign on, so one of the concessions, the pro-Russian concessions was to normalize trade relations. And then the other component was sponsored by my home senator, Ben Cardin of Maryland, was to allow the government to discover, research the individuals who were responsible for the death of Sergei Magnitsky, prohibit their entrance to the United States, and freeze any assets belonging to those individuals. Okay after passing the act the russian government responded by prohibiting uh americans

[0:44:38] to adopt Russian children. Okay, yeah, there's otherwise so when you see, and so they punish

0:44:44 Thomas: The their own people because, they correct, the the children that, uh, you know, get, they allow to be adopted by Americans, us filthy Americans, are children that they're not going to help anyway, they're poor. They're sick. They're, you know, so really, it's disgusting, like the way that they punish their own, you know, really, truly unfortunate children that are suffering from disease and stuff like that, that they previously might have allowed Americans to adopt. That's how they they get

[0:45:15] revenge for this Magnitsky Act. And the reason that I bring that up, and I should say, if you wind

0:45:21 Andrew: Up in a debate with a pro-Russian advocate on this, they will point out that there was a 2008 case

[0:45:28] in which an adoptive father in the United States allowed his Russian adoptive child to die of heat stroke in a locked car in a mall parking lot in Virginia. So they sort of seized on that event as the justification. So you should know that that happened, right? Again, right, the fact that one idiot mistreated his children should have no legislative bearing, but there you have it. I want to make sure everyone knows that for full disclosure. But the other

[0:46:00] reason that I mentioned the adoption is because that is coded language that is used by pro-Russian forces and has been used by the Trump administration when you are discussing Russia's desire to have the Magnitsky Act repealed. Okay, so they will say, and Trump has said, oh yeah, I met with Russian lawyers who wanted to discuss

[0:46:25] adoptions, right? So when you hear adoptions, that is what that is code word for.

0:46:34 Andrew: Discussing adoptions is code for overturning the Magnitsky Act. And in fact, it was

[0:46:40] the Russian lawyer, Natalia Veselnitskaya, who met with Donald Trump Jr. That is the source of the Trump Jr. meeting with the Russians where allegedly he was expecting dirt on Hillary Clinton. And Veselnitskaya is a well

[0:46:59] -known, right? Her cause is the repeal of the Magnitsky Act. So that's the background. That's why it's important. It goes after the money of high-ranking Russian officials who

[0:47:12] are connected to human rights abuses and the death of Sergei Magnitsky. What happened? September 8th, 2017. That is the Friday before Hurricane Irma made landfall. In the evening, the president published a presidential memorandum on the Magnitsky Act. And we're going to link this in the show notes. And it says, By the authority vested in me as president by the Constitution

[0:47:37] and laws of the United States of America, I hereby make the following delegations. I delegate to the Secretary of the Treasury the authority to administer financial sanctions under Section 1263 of the Global Magnitsky Human Rights Accountability Act. In exercising the authority delegated by this memorandum, the Secretary of the Treasury will coordinate with the Secretary of State. I also delegate to the Secretary of State the authority to administer visa sanctions under Section 1263 of the Act, and then directed that this shall be published in the Federal Register. And a lot of folks have sent us questions that Let's say, is

[0:48:08] this part of Yodel Mountain? Is this an attempt to undermine the Magnitsky Act? Let me tell you what I've been able to find, which is the Secretary of State Rex Tillerson,

[0:48:21] former CEO of ExxonMobil, has strong and longstanding documented connections to Russia and received in 2013 Russia's Order of Friendship, which is the highest ranking honor. Or as far as I can tell, that they bestow on a non-Russian citizen. But as far

[0:48:39] as I can tell, Rex Tillerson's connection with the Russians is on the same order as Donald Trump's connection with the Russians, which is to say, if you are an international business professional and you have no sense of ethics, patriotism, or concern about the good of this country, you have been making money in Russia, right? Right. That that's it's particularly for oil. It's a it's a really, really good place to make money. And if you don't care about the good of the country, it's a good place to make money on all sorts of deals and to get them to buy your crappy real estate that no one else will buy. This is a problem with uncritically

[0:49:18] electing a president who has no sense of ethics and does not care about the welfare of the United States. Do you think we're perfect? Do you think we're so great? Right. That's Rex Tillerson, secretary of state. Stephen Mnuchin, the treasury secretary, has no connections to the Russian government whatsoever. There is a story circulating around. I want to describe what it is that in April of this year, a Russian investor named Len Blavatnik bought an ownership interest in a firm that finances movies, including Pixar movies, that is doing a joint venture with Steve Mnuchin. Okay. And you will see that

[0:50:00] kind of bandied about as Mnuchin's contacts with the Russians. It is very, very recent. It is very attenuated in my view. And I am fairly confident in stating that if this were, if the situation were reversed, and this were a Democratic secretary of the Treasury that Republicans were accusing of having ties to Russia or being a Russian stooge, that

[0:50:25] we would have no problems dismissing that. Yeah, he's not a Russian stooge. He's just your run

0:50:32 Thomas: -of-the-mill Goldman Sachs predatory hedge fund, you know, like manager. He's already awful for so many reasons. You don't even need the Russian connections. By the way, remember when Hillary made a few speeches for some money? And not only that, actually, Trump criticized, I think it was Ted Cruz for being

[0:50:56] soft on Goldman Sachs or something like that. Yeah, he took a million dollar loan from Goldman Sachs coming out of law school. Yeah, yeah. So and then meanwhile, Trump fills his entire cabinet with Goldman Sachs members. And Steve Mnuchin is one of, the probably the biggest example there, because not only is he a Goldman Sachs guy, he had this history of all the shady, you know, purchasing these companies and then lending money and then, you know, dissolving them. It's it's uh, he's he's already, you're just normal corrupt and and kind of big money guy, you know, he's not, he's not a Russian. Yeah. So, clarify, good, good to clarify there, Andrew, of just

[0:51:40] exactly how horrible, in in what way he is horrible. Well, and and you

0:51:46 Andrew: Know, we we laugh a little bit, but but again, you know, this is this is a Yodel Mountain segment. The question, as it was framed to me, was, is this a secret and covert attempt to weaken

[0:51:58] and then ultimately repeal, uh, the the Magnitsky Act? And I don't think it fits that fact pattern. Look, like I I agree that that the timing is fishy, and from which you could infer, you know, in the evening on the Friday before Irma hits landfall is a pretty good time

[0:52:16] to bury stuff.

0:52:18 Andrew: But I think it's coincidental in this case. And I think, you know, Tillerson as Secretary of State obviously has the connections to the Russians that we described that are Trump's connections to the Russians, right? So, you know, in my view, yeah, like every interaction that we have with respect to anything that impacts the Russians, we want to look at through the political lens of, we elected a president who may well be an unwitting Russian stooge because he's not smart enough to realize he's being played by that. I thought, in fact, you talked about this a little bit on the last SIO 76,

[0:52:56] which I recommend to everyone. That was a great kind of going through and deconstructing Scott Adams, Donald Trump is a genius.

0:53:06 Andrew: And I thought the way in which you described, like, you know, it's not that Trump kind of went to the Russians hat in hand. It's that, you know, Trump suffers from arrogance and incompetence such that he probably thinks he's playing the Russians right now. And I think that's a good, I think that's a, again, you know, we're making judgments into the head of a person. So, you know, whatever, put error bars around it. But I think that's a fairly parsimonious explanation of what's going on. And I do not view that this is ordinary, right? Right. You would you would expect the secretary of the Treasury to have enforcement power over investigating complex international financial fraud. Right. That's where the authority lies. That's where those investigations take place. And if you were deliberately trying to put this in the hands of the person who is most likely to be the Russian stooge, you would put it more in the hands of Tillerson than you would Mnuchin. Right. Oh, that's yeah.

[0:54:08] Yeah. So I don't, again, I think it's, I think it's valuable. Right. There is this is not a, where there's smoke there's fire, right? Like the Trump administration has lit things on fire. There's a reason we have Clear As Kushner as a hashtag and as a patron. Um, and so it it it ill behooves us to sort of shout conspiracy, you know, kind of from every roof. It's worth looking at. It's worth saying, okay,

[0:54:33] we gotta vet this out and make sure. Um, I I don't, I don't see it in this case. All right. Well, so we came,

0:54:39 Thomas: We heard a little yodeling, but it was, it was just mood music. It was just kind of atmosphere yodeling. There wasn't any ascending up the mountain. We're just kind of standing where we are, and we we listen to a little pleasant yodeling, and now we're gonna have to return from Yodel Mountain. We'll we'll come back again at

[0:54:58] a later date. I I have, I have every confidence that we will be making many more trips to Yodel Mountain. All right, and now it is time for one of our favorite parts of the show, and that's where we've got to thank our new patrons. New Patron Tuesday, and our new patrons include Anissa K, Dustin Manning, Adam Dietrich, Philip Kizer, Taser, Natalia Friedlander, George Green, and Roger Odell. That's, uh, it's close to Roger Goodell, who I, you know, I I'm not really a fan of, but if you wanted to listen and be a patron, I'd be happy with

[0:55:35] that. But thanks, guys. Uh, and thank you to Johnny Heatley, Benjamin Macaluso, Kegan Lovelace, Mr. Jonathan Huff, and Alexis. Thank you all so much for pledging over at patreon.com

0:55:48 Andrew: Slash law. Uh, we don't think you'll regret it. Everybody who's been a patron loves being a patron. And

[0:55:54] uh, you get, uh, we've got a Law'd Awful Movies coming up with a special new guest, and we've got a new Q&A coming, and all sorts of great bonus stuff. So thank you, and A is really, really great. I love those so much. So

0:56:06 Thomas: Thank you guys so much for pledging. And with that said, Andrew, it's time. Oh man, did the streak end? This one seems so easy, but you know, it's those ones that sometimes, uh, sometimes I

[0:56:19] get wrong. So, TTTBE, answer. Here we go. Oh, no associate this firm has ever failed the bar exam. No kidding. Yeah, so, I uh, I appreciate the

0:56:31 Andrew: Ballsy way in which you you eliminated both no answers. C. So this question, I should, I should say this question was murder scene. Police discover a left footprint that is very distinctive, has a little V pattern on it and a wear pattern. They never find the left shoe. They find a right shoe that seems to have a similar wear pattern, similar V. Can they

[0:56:54] use that as evidence?

[0:56:56] And you confidently went with yes, they can use it as evidence. I really could have played it safe. Dave, I could

0:57:03 Thomas: Have picked the two most ridiculous, like the most ridiculous yes and the most ridiculous no, but I'm just so, if this isn't admissible,

[0:57:09] then I don't, I mean, my mind's going to be blown. Yep. And in particular, the one that I would caution you about just going forward and thinking about how bar exam

0:57:22 Andrew: Question distractive answers sometimes work is the D, no, because footprint guilt print evidence is highly speculative unless both shoes and shoe prints are offered and authenticated. As

[0:57:34] it turns out, that's a good elimination. That's total nonsense. It is not the law. But it could have been, you know? And so that was a ballsy elimination. I'm not going to keep you in suspense. You got the question right. You said, yes, it is appropriate circumstantial evidence of guilt. That was contrasted with yes, because it is direct evidence of guilt. And I I think you correctly worked through direct evidence is something like eyewitness testimony or finding the murder

[0:58:05] weapon in the person's hand. You know, that's one of my favorite things you've talked about because it's so

0:58:11 Thomas: True and it makes so much sense after you said it, but people often in TV shows or even in just common like conversation will say, ah, the evidence is circumstantial and you, and I can't remember what episode it was. It might have been just a Q&A or something, but you said, yeah, like that's good evidence. There's circumstantial evidence. Most evidence is circumstantial. That's how you build your case. And it really made sense to me because when you think about it, as you just highlighted, direct evidence is kind of rare. Like it exists, but you're not always going to have the person holding the bloody knife, you know, like most cases are probably going to

[0:58:48] be largely circumstantial evidence. That is exactly right. Right, so, uh, so great job. All right, that one was easy. Thanks for tossing me an easy one. What the streak, what is it, nine, ten, nine, seven in a row? Wow. Yep, if I can get to ten, I mean, move a step aside, Cleveland Indians, I'm, I, I'm gonna be the, I don't know, well, adjust, there's a new, there's a new streaker in town. Yeah, yeah, that's, I like that, step aside, there's a new... All right. Well, future Andrew, assuming your time machine dials are functioning properly, you're going to have to tell us who got this one right this week. So,

[0:59:31] Thomas, this is a great week for TTTBE. We had a number of folks try and analogize the question

0:59:37 Andrew: To historical serial killers, some of whom got it right and some of whom got it wrong. And we

[0:59:43] had a number of folks who made OJ-themed jokes. I thought the best combination deserving a shout-out was Sandra Whitson, that is, at S-W-H-I-T-S-O-N 32, at SandraWhitson32 on Twitter, who says, I agree with Thomas. The answer is B, V on the heel. You must appeal. Pretty clever. Got the answer right. And so Sandra Whitson is this week's TTTB winner. Everyone give her a

[1:00:14] follow on Twitter at S Whitson 32. And thanks to everybody for playing. All right. Thanks. Future Andrew. Thanks.

1:00:21 Thomas: Current Andrew. Thanks. Every time slice in time, Andrew, and also thanks for listening and patronizing us. And we'll see you on Friday for some, some newsworthy breaking news content. See you then. Stop breaking

[1:00:33] the law, asshole!

[1:00:40] 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.

[1:01:28] This podcast is a production of Opening Arguments Media, LLC. All rights reserved.

[1:01:37] Doing it in the butt is awesome.