OA278: The Founding Myth (w/guest Andrew Seidel)

Transcript

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

[0:00:03] So I hold myself in contempt if you try to pull me up here to court with that attorney. [0:00:19] I'll ask the questions here, carjacker Willie. Objection! I'm going to allow it. It characterizes the defendant as a carjacker. [0:00:30] You didn't kill Thompson, but you did, Mr. Wells. Yes! Yes, I killed Ned Thompson! I killed him! I killed him! I killed him! I killed him! [0:00:45] You're out of order! You're out of order! The whole trial is out of order! They're out of order! [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.

0:01:18 Thomas: Hello, and welcome to Opening Arguments. This is episode 278. I'm your host, Thomas Smith. And over there is Andrew Torrez, optimist

[0:01:25] prime. How are you doing, Andrew Torrez?

0:01:28 Andrew: Well, we are going to test my optimism today. I am really, really looking forward to having

[0:01:34] our most frequent guest on the show, back on the show, Andrew Seidel. We're going to pepper him about Christian nationalism, and is the country headed down a horrible pit of despair from which there is no exit? It. Sounds fun. Can't wait to get over to it.

0:01:56 Thomas: Quick bit of pre-segment stuff here. We might have to be bumping a really good listener question for time. Do you want to tease that?

0:02:07 Andrew: Yeah, yeah, yeah. So Reed Henninger asked on Twitter, RGH184, he says, in response to our good news coming out of Kansas, episode 276, he wanted to throw some cold water on that. He said, well, look, if the Supreme Court overturns Roe and Casey, couldn't a GOP Congress just pass a law banning abortion at the federal level, mooting all the state-level constitutional rights that you're talking about? The answer to that is no. I am very, very confident that the answer to that is no. But I'm going to have to talk about a couple of cases to answer the question. And And and I think that that we're going to give that time to Andrew Seidel. It's going to be super interesting. So answer to your question is no. I will tell you why super soon, but

0:02:56 Thomas: Not today. Yeah, you got to have time for the full Andrew Torrez deep dive. Don't want to don't want to give give that short that at all. So but I'm glad you give us the you gave us the Bill Barr summary kind

[0:03:08] of Of it, of that question, except I hope less misleading. Misleading? It couldn't be more misleading. All right, well, let's hop on over and get Andrew Seidel on the line. Have you ever tried a jury trial? I have not. Civil? No. Every lawyer is tempted. Criminal? No. Bench? No. Not only to eat forbidden fruit, but to become the snake. Stayed our federal court? I have not. Why am I persecuted here? And we are joined by Andrew, Andrew Seidel. How's it going, Andrew? I am well. Thank you so much for having me on again. I really appreciate it. Oh, we are always excited to have you, but particularly this time because you've got a new book coming out on May 14th. That's just in a couple of days from when this will

[0:03:54] Go out. And it is called The Founding Myth, Why Christian Nationalism Is Un-American. And this is good timing. This is right up our alley. This couldn't be more in line with everything that we on this show are interested in as you know secular people and as law geekery people and original anti-originalists all that good stuff so excited to talk about the book uh now I know Andrew Torrez you

[0:04:19] Uh, wanted to maybe embarrass Andrew's side a little bit. I I'm gonna embarrass him because

0:04:25 Andrew: Look, everybody listening to the show, yeah, Andrew's a, I think, six time maybe seven time guest on here. They know you're great. Uh We, we know you're great. You, you don't have to take my word for it. Um, the Andrew has gotten, as a, uh as an endorsement blurb in the book jacket, something

[0:04:44] That for me is like, uh, that, you know, is, is, is my white whale, right? Um, this is so, uh, so, so Dean Erwin Chemerinsky wrote two of the textbooks that I used in law school. Well, we all know who Dean Rowan Sherminsky is, and it's a household, please, I mean, he among law students he is a household name, right? I mean, he's kind of, he's like a law god. Yeah, it's, it's, it's true.

0:05:15 Andrew: And and here's what he said about Andrew's book, which I, you know, again, the the

[0:05:21] The level of of jealousy and it's a tiny bit, bit of hatred here is palpable from, uh, Dean Jemerinsky writes, "Andrew Seidel has written a wonderful book that explodes a frequently expressed myth that the United States was created as a Christian nation. Seidel looks at the history before the ratification of the Constitution and refutes the view that the United States was meant to be Judeo-Christian. He also demolishes the myth that American law is based on scripture such as the Ten Commandments. In this beautifully written book, Seidel powerfully shows that Christian nationalists are arguing for a vision that is at odds with the essential nature of a constitution and American government."

[0:06:00] That's, I mean, that is just amazing as an endorsement. And seriously, you should be proud that there is, I mean, we've bantered back and forth here a little bit, but Chemerinsky

[0:06:13] Is absolutely one of the towering intellects in the field. And you should rightfully be proud on that endorsement. That's a big one. I mean, I, I really am on that one. I think I texted you when that email came in, actually, because I was just like geeky, I was like running around the office. You, you did. And I don't believe that my text back could be read, uh, consistent with this show's, uh, clean iTunes radio. You'll have to do a, well, while we're on the topic of compliments, I got one more

0:06:45 Thomas: I'm on uh amazon on your book to pre-order here and uh one last comment is frequently bought together the The Founding Myth Plus the Mueller Report by Washington Post on paperback.

0:06:57 Thomas: There you go. I don't know what that means, but that seems like a good omen. But I feel like maybe we should start with the basics and just ask what led you to want to write on this particular topic? I can imagine a number of answers, but what did it for you? What was the specific thing?

[0:07:15] I mean, this actually started off as a book. It was actually going to be not a book. It was going to be a law review article. And I was looking at this frequent claim that we are, that our laws and the foundation of the United States was built on the Ten Commandments and that there's this really heavy influence between those ten rules and the founding of America. We've seen this from some of the originalist and conservative Supreme Court justices. It's one of the reasons that the Ten Commandments monuments, in the cases where they have been upheld on public land, they've been upheld. And it never made sense to me. So I kind of wanted to dive into that. And then this

[0:07:55] was, that was 10 years ago. This was actually while I was still just finishing up law school. And then from there, the more I researched and the more I learned about the arguments that Christian nationalists make, the more alarmed I was and the more I wanted to not just refute them with facts, but also with better arguments. Trump was elected president and I really wish he was not, but it makes my book that much more relevant and useful to the nation right now because Trump was elected because of Christian nationalism. So it went from this sort of like- No, no, no. I'm sorry. We got to jump

[0:08:35] in there. Yeah. Okay. Okay. Go for it. Yeah. Come on. I know. Trump was elected because of Christian nationalism. How would you prove that claim? Yeah. So there's actually a number of studies that Andrew Whitehead out of Clemson University has done with some of his colleagues. And he looked at the data from the 2016 election and he wanted to know how did this happen, which was the question everybody was asking. And he was looking at what was the best predictor of whether or not somebody was going to be a Trump voter. And the best predictor was not their political party, not whether they were Republican or not, not their religion. It wasn't

[0:09:15] Their race or their racist tendencies. It was whether or not they believed that the United States was a Christian nation and should return to that foundation. Right. But that's also going to correlate with some racism and misogyny. It is. It is. And it's going to correlate with conservative politics and it's going to correlate with conservative religion. And that's why this is such a threat to our country, because it's the nexus of all of those things that everybody's kind of talking about, rolled into one ugly, threatening package.

0:09:47 Thomas: Yeah. And it certainly seems like the evangelicals were obviously key and getting, finding a way to convert Trump into, even though he's clearly not a Christian and clearly not any sort of religious minded person, nevertheless, making him a kind of a battle in the Christian nationalist war, you know, cause rather in the Christian nationalist war was a way to, to get him a lot of support from people who, you know, you wouldn't think would ever support somebody like

[0:10:18] Him, yeah, and I mean, and you know, there, it was over 80 percent of evangelicals supported Trump. That's still one in five that didn't. But again, the better predictor is is whether or not they are Christian nationalists, and there's just, there happens to be a massive overlap between those populations. Um, and you know, Christian nationalism is sort of this, I think I wrote in the book that it's this incestuous marriage between conservative religion and conservative politics, and that's really what it is.

And and you can see we see it all the time in the rhetoric that Trump and Pence and this administration trot out. You know, if you listened to Trump at the National Day of Prayer event that they held at the White House, or listen to him speak at the

[0:10:58] Conservative Political Action Conference, you know, he, he constantly trots out these myths and the idea that not only that we were founded as a Christian nation and founded on Judeo-Christian principles, but things like, were we, our kids pledge allegiance to one nation, under God, they talk about, in God we trust, he regularly mentions the four references to quote, our creator, in the Declaration of Independence, uh, and that Ben Franklin suggested that the founding fathers pray at the Constitutional Convention, and all of these were already things that I was addressing and debunking and exploding in The Founding Myth. So, and and again, uh,

0:11:39 Andrew: You know because Because you have a friendly environment here,

[0:11:45] I want to try and make it as hostile as we can in this interview, to push at some of that. I want to go back to your initial statement when you were kind of talking about getting involved, you know, 10 years

[0:11:57] Ago, looking at some of the Ten Commandments cases. And you said you see this kind of myth of Christian nationalism, right? Right. My my. So the counter argument here would be, look, Mike Pence is low hanging fruit. Right. We get. Right. He is unquestionably a Christian nationalist. It's been his entire political career. And, you know, it's unfortunate that he's been elevated

[0:12:22] to the vice presidency. But this this view really can't be taken seriously in, you know, the judiciary, for example. And let me quote a little bit from Van Orden v. Parrott. This is a case we've talked about before when we were talking about the Bladensburg Cross case,

[0:12:41] the AHA case. This is the 2005 case that, for whatever reason, Judge Breyer decided that the Texas Ten Commandments monument could stay, but the Kentucky one could not. Not that, you know, I'd love to drill down, but but but here's what Breyer's opinion says. This right says, look, in this case, we have a display of the Ten Commandments, but contextually it's around other lawgivers. Look at our own courtroom.

[0:13:16] And again, this is somewhat misleading, right? That the Ten Commandments adorn the metal gates lining the north and south sides of the courtroom, as well as the doors leading into the courtroom. Room. Moses sits on the exterior east facade of the building holding the

[0:13:29] Ten Commandments tablets.

0:13:30 Andrew: Those are not, you know, it's just he's holding, you know, two tablets there. But then I think kind of the key part of the passage, Breyer says, is this. He says, of course, the Ten Commandments are religious. They were so viewed at their inception and so remain. The monument therefore has religious significance. According to Judeo-Christian belief, the Ten Commandments were given to Moses by God on Mount Sinai. But Moses was a lawgiver as well as a religious leader, and the Ten Commandments have an undeniable historical meaning, as the foregoing examples demonstrate. Simply having religious content or promoting a message consistent with religious doctrine does not run afoul of the Establishment Clause.

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[0:16:27] to 303030. Let me kind of put all of that together with you. Look, I'm not a fan of the Van Orden decision, decision uh but but I would argue I or I could argue I'm going to argue to you here that this is this is pretty narrow, this is saying the Ten Commandments are appropriate uh in

0:16:45 Andrew: A context with other lawgivers, and they are appropriate because of their historical significance, um, both of which are are true propositions, right? This is not part of the the myth of Christian national, where, where's the judicial embrace of uh, you know, of these scary Christian national? Or aren't

[0:17:04] you just drumming this up out of whole cloth? Yes, I'm known for my fear mongering. But let me first just give a shout out. I was actually talking about this with one of the other attorneys in the office this morning, because I've been doing a lot of the secular podcasts lately. And I get asked these questions, or specifically, what's the best argument against your position, Andrew, on these podcasts all the time. And it's not something that I ever hear anywhere else, which I find to be really interesting, and I think it speaks very highly of the secular community and the communicators in it, in general. But now that I'm

[0:17:44] done – Now that you've flattered me to not answer the question, answer the damn question, Andrew. Yeah, I mean, you can look back through the Establishment Clause cases and you can see judges justifying little violations of the Establishment Clause on the backs of many of these, many of the things that I address in the book. Um, they, they are a majority opinions that have mentioned, look, we have under God in the pledge and we have in God we trust on our money. Uh, and, and they are, they're not necessarily making them the central

[0:18:25] rationale for their opinion. And Breyer's decision in Van Orden is so bizarre. Um, it's, it's, it's such an outlier in so many ways. But if you read Scalia's opinion in Van Orden, I mean, he is far more explicit and does talk about the influence that the Ten Commandments had. And he also mentions that he didn't realize there were different sets of Ten Commandments in the Bible and that different religions interpreted them differently. But you can look at those lies and see them driving public policy today. I mean, you can see it in our education policy with Betsy DeVos. You can see it in the immigration policy. I

[0:19:05] mean, the Muslim ban is a really wonderful example of this, and I try to expound on that in the introduction of this book. Civil rights, women's rights, LGBT rights are foreign policy. You know, the shift of the embassy to Jerusalem was partly based on these Christian nationalist rationale. And judges are deciding these cases based on lies and myth, not just on the culture war issues. And it's happening alarmingly more and more, not less and less. And, I mean, I'm pretty sure I've heard you talk about this before on the show, Andrew, how the Supreme Court is just one court and it handles very small minority of the cases that get before it. But, you know, practicing in this area on a day-to-day basis,

[0:19:45] I can tell you that the role history plays in courts deciding establishment clause cases, separation of state and church clause cases, is becoming alarmingly high. And history is very, very malleable, unfortunately. And when they start latching on to this revisionist history of Christian nationalism, we're going to get uh, you know, huge breaches in the wall of separation of between state and church, if not it being torn down altogether. So yeah, I I I share that concern, um, and I guess the the

[0:20:25] question is, I mean, let let me ask both parts. But if if one is operating under the assumption that there are five sitting justices on the Supreme Court that have in print expressed approval for the accommodationist view of separation of church and state, which is to say not having one,

[0:20:46] then, right, then guidance from the Supreme Court is about to become very, very bad very, very soon. So what's the strategy, like what can we do to sort of, you know, fight those those holding actions, like how, how can we educate judges? I mean, who should we be looking at? How can we educate judges so that they're not quoting from David Barton in their opinions or, you

[0:21:11] know, other, you know, other aspects of sort of unwittingly buying into this, you know, myth of Christian nationalism? Yeah, I mean, so and that's kind of, I mean, I hope what I did with the book, really, at its most basic, to me, this is this is a fight about what it is to be an American. And the Christian nationalists want to redefine what it is to be an American. That to be an American is to be a Christian, and to be a Christian is to be an American. And once they've done that, they are going to seek to redefine the law accordingly, and they're kind of doing them concurrently. And the claim that I examine,

[0:21:51] and the subtitle of the book comes from. I asked, did Judeo-Christian principles positively influence the founding in the United States? And my thesis is that no, they didn't. And that those principles, Judeo-Christian principles, and especially the ones that are central to Christian nationalism, are so thoroughly opposed to the principles on which the United States was founded that, and they differ and conflict to such a degree that it's fair to say that Christianity is un-American. It's a bold statement. I understand it probably gets a lot of people's backs up, but I think it's something, it's one that we must make. And I and I use the word un-American even though it might make some people squeamish because it's got this uh, it's got

[0:22:31] a value judgment that's that's built into it, but we are in a fight for our values, uh, it's so, you know, tell me, tell me what you mean by that, right? Like, what what principles in particular do you think? Yeah. And are you saying Christianity as a whole or Christian nationalism specifically? A little bit, a little bit of both there. But I mean, like, let's just, let's just take the Ten Commandments, since we've been talking about them a little bit.

On this one, I mean, the first commandment, I mean, first of all, you have to, and I do this in the book, it's kind of fun, you have to ask, well, which Ten Commandments actually supposedly influenced the founding of our country, um, because there's more than ten commandments, there's four sets of Ten Commandments in any given Bible, um, and

[0:23:11] they're, different religions interpret them slightly differently, um, you know, some say don't kill, others say don't murder, which might not sound like a big difference, but actually to your listeners they should realize what, uh, what a big difference those two things could be, um, but look, so just take the the first commandment, I am the Lord your God, you shall have no other gods before me, right? That is a statement that runs completely, it is completely antithetical to the founding value of this country, the free, free exercise of religion. It's completely antithetical to the First Amendment. It says that I am your God, you can't worship any other gods. And that's precisely

[0:23:52] the right that our founders chose to protect and chose to enshrine in our Constitution. Those two principles are at loggerheads. They cannot ever agree. And so to elevate the one in spite of the other is, is in my mind, un-American.

0:24:09 Thomas: I know. I love how we talk about the Ten Commandments. And it's one thing, I guess, if you're making an argument that like, okay, well, from a historical perspective, it's okay to have a monument because like, it's about the history of law. All right, maybe. But if you actually think the Ten Commandments have any bearing on law or like this country, how many of them are even laws? Like, okay, maybe murder, sure.

[0:24:33] Stealing. But like, it's like, Like there's four, three, two or three of them that are just like, I'm God and I'm really jealous and make sure to not talk about other gods around me because I'll just freak out, man. I'll freak out. That's like two or three of them. And then, you know, obey your parents. That's not a law. What, you know, like there's a, most

[0:24:51] of them aren't even things that are laws.

[0:24:55] I mean, those are all excellent points. And I actually, I walk the reader through every single one of those commandments and And even the prohibitions on murder and theft in the Bible, in the Bible's version of the Ten Commandments, are not as clear cut as you would think at first. They're actually pretty exclusive. They really only apply to the in-group, not to them. Right, yeah. So you have these first rules that tell people how they should worship the God, like you said. And, incidentally, not only that the god is a jealous god, but that he punishes to the third and fourth generation children for violating certain of those rules. I mean, literally promising to punish

[0:25:35] innocent children for the crimes of their parents, which is incidentally prohibited almost verbatim in the Constitution. Yeah, the Constitution practically says this is a bad commandment. Like, we are against this. Yes. And that's the kind of point that I'm trying to make, that if you really get if you don't just take those statements at face value and you get into the ins and outs of what the Ten Commandments say and what they actually mean, that they do conflict with the principles that we hold most dear in this country. And if they conflict and they don't agree to that level, I think it's perfectly fair to say that they are

[0:26:16] un-American. And I think that if we don't do that, if we refuse to label that which is antithetical to America, we are letting the Christian nationalists hijack our nation and drag it down this dark hole, and I'm not, I'm just not going to stand by and and watch that happen. Okay, so let me let me keep pushing you a little bit, suppose. Please do so. I mean, you'd like it, um, I'm listening to the show and, um, you know,

0:26:40 Andrew: Look like I I tolerate the fact that you know thomas and andrew are uh are atheists but you know I am

[0:26:47] uh, the a, a, a mainstream U.S. Christian listener, let's say, right, like one of this sort of vast majority, I

[0:26:57] go to church once or twice a year. Yeah, yeah, right, yeah, you know, on on Easter and Christmas, and but but I identify, it's important to me to identify as as uh as Christian, for for lots of reasons the three of of us absolutely could come up with arguments about, you know, where, yeah, it could could sit down, engage that person, but but how would that person sort of consistent with their kind of view and and take on life, somebody that, um, you know, otherwise listens to the show and

[0:27:29] and is sort of on board, um, how are they going to approach your book? Like, what, what, what, um, you know, is it, is it reaching out to them as well, or is this only a book for atheists? No, this is definitely not only a book for atheists. I mean, I do take a stronger line than other books have on this, but it's a line of argument because there have been a number of books out there, and they're good books, about trying to debunk the Christian nation myth. You know, they explain what history tells us. They explain, here's

[0:28:10] what the founders actually said. Here's what they actually meant. But then they kind of leave it at that. And correction is not enough. Otherwise, we wouldn't have President Trump. So pointing out errors is insufficient. So my book, I really tried to go on the offensive in this book. And I don't mean that in the way that I'm trying to offend people. But I am actually trying to assault and undermine the Christian nationalist identity. Uh, because it is having such a huge impact on our, on our public policy. Uh, it, you know, the correcting the record is certainly important, but it just hasn't proven that it's enough. The

[0:28:50] book is, is I think accessible to everyone. I don't know that it's going to, I guess it's probably not going to convince a lot of the Christian nationalists out there, but the, the goal really is to arm every other American with the facts and more importantly, the arguments they need to refute those un-American ideas. And, you know, I will say that I tried to treat religion as an idea like any other idea in the book, you know, not with contempt, but not with any undue respect either. And I think part of the reason that Christian nationalism has succeeded is because in this country, we have sort

[0:29:30] of this ingrained unwillingness, reluctance to offend religious sensibilities. And, you know, if you cater to those sensibilities, it can limit our sense for truth as religion can itself. So I think there is strength in throwing off those self-imposed restraints as well. But, you know, this is not, it's not bashing religion for the sake of bashing religion and to try and be offensive to get, you know, news coverage for it. I think I think there is strength in in approaching it from a a almost not scholarly standpoint, because I think they tend

[0:30:10] to do a little too much respect for no reason. But but, you know, not giving it any undue respect, essentially. Yeah. So how does Christian nationalism threaten sort of, you know, everyday, you know, American casual Christianity?

[0:30:27] I mean, that's an excellent question. And one of the things that I think probably the secular movement has not been great about is explaining why separation of state and church matters to the average religious believer. And I try to devote a whole chapter to this in the book. But, you know, for instance, James Madison wrote that religion and government will both exist in greater purity the less they are mixed together. He thought that to use religion as an engine of civil progress was a, quote, unhallowed perversion of the means of salvation. And what he was talking about when he was saying those things, he's saying that when you put get religion and mix it with the

[0:31:08] politics, which are dirty by nature, you are degrading. Degrading your religion. And Christian nationalism is this, again, this incestuous marriage between conservative politics and conservative religion. It's using and abusing religion for political ends. And I would love to see American Christians, and maybe we are seeing it start to happen, stand up and say, no, I don't want my religion to be used in this way. And I do do think that it's un-American to be using my religion in this way. So I think there are certainly arguments, and especially a few chapters in the book that will help American Christians and

[0:31:48] other believers make those arguments as well. Hey listeners, Opening Arguments is sponsored by Lightstream.

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[0:32:56] L-I-G-H-T-S-T-R-E-A-M lightstream.com slash OA. One more time, lightstream.com slash OA. Go get that extra discount. This is subject to credit approval. The rate includes 0.5% auto pay discount. Terms and conditions apply and offers are subject to change without notice. Visit lightstream.com slash OA for more information. You know, I was going to, Andrew Torrez, you're asking a lot of questions about, you know, the judiciary and what's currently happening. I was, I was wondering if we were going to get any, a little bit of a history lesson. And I could ask you, Andrew Seidel, the basic question of why aren't we a Christian nation? I mean, like there surely were some Christians involved in the making of this country.

[0:33:38] And I imagine maybe some of them would have wanted us to be a Christian nation, but I guess shortest, it might be a tough, tough thing to answer in a short time, but why aren't we a Christian nation? Why didn't it happen that way? I mean, and I should say that, you know, I kind of dispose of that question right at the beginning. Um, you know, the idea that we're a Christian nation, you know, it's, again, it's been debunked by these other authors.

It is really interesting, but if I think most people probably have a pretty good sense that that's not true. Um, they can, they can refute it. They can point out that, oh, well, we have a godless constitution. There's no mention of it. And it keeps religion and government separate. It says so in the first amendment, it says so in article six, uh, some

[0:34:18] people like to cite the treaty of Tripoli, you know, the United States was not in any sense founded on the Christian religion. That's a very clear statement. Yeah, um, but, but when you get stuck debating the Christian nation thing, the, the fallback position almost always is, well, what I meant was we were actually founded on Judeo-Christian principles. And, and, and that's a harder question for a number of reasons. One, because what the hell is a Judeo-Christian?

Yeah, what does that term oh, it means the good ones that I agree with and are probably hopefully in the Constitution. Is that what it is? I mean, legitimately, that is an answer I think I've heard before. I mean, and, and the, the claim is insulated because of the vagueness of that

[0:34:58] term. Yeah. And so I really, and I set out to undermine and examine and debunk that claim, because if you can debunk the idea that we were founded on Judeo-Christian principles, then everything else goes along with it, the idea that we're a Christian nation goes along with that. Um, so, so that was really what I set out to to show. And it turns out that in my research doing this, Again, it's not just that we weren't founded on Judeo-Christian principles, but it's a good thing that we weren't founded on those principles because they are often antithetical to the values that we as Americans hold most dear and that our nation was in fact founded on.

0:35:35 Andrew: Have you heard the argument with respect to the Treaty of Tripoli that you quoted, that a different version of the treaty was ratified, the one that didn't have that as a preamble? I just, I'm curious

[0:35:48] if you've ever encountered that, uh, line of argumentation before. I have, I have seen that line of argument, um, and it's, it's not from the preamble, it's from, like, I think it's from like Article 23 or 20, it's from fairly deep in, in the treaty, um, but again, that's the beauty of, of I think, I, I wish I hadn't said "the beauty of my book," uh, because that sounds sounds incredibly arrogant, but that's why I took the tack I did in my book. I didn't want to just focus on that one factual claim because it can be, not only can it be debunked if that is in fact a true counter argument, but you can put out a fake fact, fake news, and

[0:36:29] the Christian nationalists are going to buy it and eat it up. Whereas if you go after their identity and the things that are are most central, uh, to, to that identity, then you can really, uh, maybe change some minds and really undermine, uh, their legislative agenda, for instance. Uh, so really I think it's incumbent on us to go deeper than citing just a couple of facts here and there. It's, it's about restructuring our argument and, and pushing that argument and, and, uh, the facts that go along along with it. What, what kind of items right now? I mean, I think, you know, some of us know, for example, you mentioned, uh, Betsy DeVos. And so something that has been, you know, at the apex of what I would consider, you know, Christian nationalist, uh, efforts to, uh, to seize control of

[0:37:18] the education system is, uh, the, the, uh, the notion of pushing for vouchers, which take, uh, money away from, from from public schools and give it to private schools. What, what other kind of of legislative items are out there that, you know, are maybe just as pernicious, but but haven't gotten as much attention?

[0:37:41] Yeah, I mean, well, and first of all, the real goal of vouchers, and they were, they were very the voucher movement was very clear about this when they were born a decade or so ago, and that they've started to, they got smart about their rhetoric, but the real goal of voucher schools was to actually dismantle the public school system as a whole. That was the initial push. And I direct people who want to read up more on that to some of Catherine Stewart's work. She's done a great job kind of explaining that. But one of the big things that's been, I don't know if it's really under the radar, but it's certainly a big push is this is Project Blitz, which is being pushed

[0:38:22] by the Congressional Prayer Caucus Foundation, Wall Builders, which is an outfit run by David Barton, who's a notorious and leading Christian nationalist, and one or two other groups. And Project Blitz is, it's an attempt to do exactly what I've been talking about. It's explicit Christian nationalism. They have a playbook that's over 100 pages, and it lays out a ton of different laws. The new laws that have been passing around the country, advocating for Bible classes in the public schools, putting up In God We Trust in the public schools. That's their first tier of laws. Tier one

[0:39:02] laws are meant to kind of help redefine what it is to be an American, to push Christianity more into the government and get people thinking about, well, we the people really means we the Christians in a way. And then the second tier starts to take bites out of some of your rights. And then the third tier are laws, for instance, that will redefine marriage as a man and a woman, laws that will allow adoption agencies and hospitals and pharmacists to discriminate against LGBTQ people. Outright discrimination. So again, the goal is to redefine what it is to To be an American in light of the Christian nationalist's

[0:39:43] identity and revisionist view, and then to retool all of our legislation, our laws accordingly. And Project Blitz is sort of the perfect encapsulation of that. I'm really glad you mentioned that. I want to link the full text. It's 148 pages long, Uh, but the, the, the, the project blitz, uh, playbook is, um, I mean, you are not, you are not only are you accurately summarizing, you've, you've left out sort of the horrifying fourth section of, uh, which is sort of Newt Gingrich, Frank Luntz focus tested. It's, it's called "Talking Points to Counter Anti-Religious Freedom Legislation." And, and the examples of anti-religious freedom legislation are, of course, adding sexual orientation as civil rights category, adding gender identity as a civil rights category, uh, prohibiting, uh, conversion therapy, and repealing state Rifra. And, and, and, and of those four, I mean, the only thing that is even, even remotely, you know, defensible to be categorized that way would be, you know, repealing state riffraffs. But but but yeah, no, it's it's if if anybody thinks that you are exaggerating, I'll

[0:41:09] link the text of the show to show if anything, you are steel manning the other side when it comes to. Yeah, I would agree with that. And this is actually the second version of the playbook. You know, the first version came out a year before that, too. And it's not improved, but in their minds improved, I would imagine, already. Yeah, it's scary. And they're explicit about what they're trying to do. They're not hiding the ball at all. You know, I don't know if this is something you would answer in your book, but why couldn't, why

0:41:41 Thomas: Aren't the Judeo-Christian ideals that these people want the country to be founded on, why aren't they ever the good ones, like feeding the hungry, not being wealthy, you know, not charging exorbitant interest? Like, there's a lot of good things that could have been the Judeo-Christian values. Why isn't it, why aren't those the ones that, you know, some Christian nationalists are fighting for?

[0:42:04] I mean, that's a very interesting question, Thomas. I do not know the answer to that. I think, I know, I'm not even going to go into it. I will just say I don't know. It's okay. Yeah, I don't know either.

0:42:19 Thomas: It's amazing when you actually read the Bible, as I have done, famously in podcast form, how bad the Old Testament is, how tiny the Jesus parts are, and how not Republican they

[0:42:32] are. That's pretty amazing. Yeah, I mean, why don't they look at Jesus's Sermon on the Mount, where he says that, you know, if you want to pray, don't be like the hypocrites who pray in public, you know, go pray in private. But instead, we have government prayer at every level, from city, county, all the way up to Congress in this country. Well, yeah, two things. I mean, number one, for me, the turning point where I began saying that the religious right in this country is a political movement first and a religious

0:43:06 Andrew: Movement never was when Franklin Graham scrubbed his Web site of "Mormonism is a cult" during the 2012 presidential elections. Right. Like the evangelical movement. Right. Again, this is not to suggest you can't find this from religious leaders. Right. Like it's it's everywhere. But they lined up in lockstep behind the Mormon candidate after, you know, 150 years of "this is a dangerous non-Christian cult." Fault um, that, you know, it's only one data point, but to me that was a pretty strong, uh, data

[0:43:44] point on, on the on why, you know, that would be my answer to, to Thomas's question. Um, but you, you segwayed into I've, I've got to ask you at least this one, because you segued into opening legislative sections with prayer. So, yeah, you and I were both there for Monica Miller's argument in the AHA versus American Legion case. And replete through the American Legion's brief in that case, which explicitly argues to overturn the Lemon test in favor of a grotesquely unworkable test that we've talked about on the show on a couple of occasions. But the primary case that is cited more than

[0:44:29] any other in that brief is the Town of Greece versus Galloway decision, which validated the town of Greece beginning with a with a prayer before the legislative section sessions. We've talked about the work that FFRF does in a corporate sense

[0:44:48] and that you do individually in trying to narrow that decision, right, to argue that Galloway shouldn't apply, for example, to school board meetings, particularly with children representatives on the school board and other cases, is if I were picking out of a hat, I would say Town of Greece is probably the primary club being wielded by the other side that is looking to smash down the wall of separation of church and state. Do you share that view? Is there another case that's

[0:45:26] sort of even worse that I'm not thinking about? What are you worried about in terms of sort of the near horizon in jurisprudence?

[0:45:37] I mean, I do share that view, but I think it's important for everybody to understand, too, that the town of Greece was built on the 1983 decision, Marsh v. Chambers, in which the Supreme Court used history, and I'll say bad history, to essentially say that, look, this has been happening for a really long time in our country. The founders did it at about the same time they passed the First Amendment. Heck, they even did it before the First Amendment was around. So they obviously don't think it's unconstitutional. So basically, the First Amendment doesn't really – our First Amendment tests and jurisprudence don't really apply to government prayer. And it goes

[0:46:17] to kind of the central point that I'm trying to make in the book, which is that these historical lies and myths are important to refute because they have this power. I mean, that decision then was directly, the town of Greece decision was directly based on that 1983 Mars versus Chambers decision, which was directly based on this bad history. I mean, so you can draw a line connecting those. And I mean, to get a little bit more to the point that you to your question, the really scary version of what could happen would be that the court says, you know what, throughout history,

[0:46:58] basically, if the government wasn't coercing you into some sort of religious practice or into some sort of religious observance that you disagreed with, then it wasn't a problem. You know, when the founders, when they were separating state and church, they were only trying to say that, you know, things like the Spanish Inquisition were not okay. That was coercive, and anything less than that is not really what we were talking about when we were talking about separating state and church at the beginning of the United States. That, you could get a decision like that. I think it would be based heavily on bad history, and it would shift from the Lemon test to

[0:47:39] the coercion test, which has not been really ever put into practice before. And the bar for the government coercing somebody into a religious practice is incredibly high. It's almost impossible to meet. And if that shift happens, and it could happen, I mean, it could theoretically happen in the AHA case, the Bladensburg case that you just mentioned, that would be, I mean, that would essentially tear down the wall of separation between state state, and church altogether. And we'd be left standing on this rubble trying to figure out how to fight it. Yeah, that is the primary argument that was advanced by the American Legion in that case. So, well, you've done a great job of out-depressing me

[0:48:22] On this episode. Any... Well, let's also say, too, that they'd be shooting themselves in the foot if they did that, too. I mean, I think I've said this on your show before. There is no freedom of religion without a a government that is free from religion. You know, the free exercise of religion that they are claiming to fight for does not exist without a secular government. You know, and if so, if you do away with the rules that make sure we have a secular government, you are absolutely rolling back religious freedom. And they're doing it because they're in the, they're okay with doing it because they happen to be in the majority right now. But

[0:49:02] we all know that the demographics are are saying that that's not going to be the case for very long. Well, on that uh is that a happier note to end on? I think that's a good uh note to

0:49:15 Thomas: Go out on here, um, just a reminder again, the book is called The Founding Myth. It is uh Why Christian Nationalism Is Un-American, and it is out on May 14th at fine Amazons

[0:49:29] everywhere that Amazons are. Or is there any other place we need to direct people too? Well, if people want a signed copy, they can buy from ffrf.org. That is a fantastic idea. Yeah, if they mention in the checkout thing uh you know that you want a signed copy, or ask me to write something, that I will do that. I might, I might do that. And I might, I might have you write something like, I'm the better lawyer. Better at TTBE. Speaking of, we're, we need to get to our TTBE answer. All right, but before we get to that, Andrew Torrez. We've got to thank our new patrons over at patreon.com/law. And we begin

[0:50:06] with Julie Benson. Chugga Chugga Chugga Chugga Boutros Boutros Ghali. What? Boutros. Boutros Ghali. Okay. I don't know what that is. It's a UN general secretary. Yeah. All right. Sure. Kenny Coy. Denver Lodge. Jon Herrin. I'm not giving my name to a machine!

0:50:25 Thomas: Perfidious Pete, lemme clear, oh wow, this is breaking my brain, lemme clear totally be- I clearly

[0:50:31] shouldn't have eaten that bee. Okay, Tony Bellegante, your turn, uh, and thank you to Mateusz Pasternak, to Sizzle_My_Meatloaf, you gave us a buck, I'll sizzle your meatloaf, buddy. Uh, Joel Hillman, Dean A. Batha, David Derby, Emily, Jason Wright, Curtis Fraŋks, there's an unpronounceable character in the middle of that, so if I've messed it up, let me know. Hotspear Swim Buoys,

0:51:02 Andrew: Take your valuables for swim and be visible to surfers. And Thomas Maher NPC.

[0:51:09] Oh, our first NPC, non-player character. Yeah, there you go. I really like the idea that, uh, former UN Secretary General General Boutros Boutros-Ghali is a patron of the show. I don't

0:51:21 Thomas: Understand any part of that. That came out of nowhere for me, but okay. I also like that we're finally getting the NPC market segment. We've been gunning hard for the NPCs of all your favorite games. It's a growing market. It's going to outnumber real humans soon.

[0:51:38] Oh, no associate of this firm has ever failed the bar exam. No kidding. But now it is time for the moment of reckoning. Yeah, Thomas and Andrew take the bar exam. This was question 125, and this is an evidence question. Everything

0:51:57 Andrew: Else was an attractive, or maybe not so attractive, distractor. Um, this was a defendant charged with fraud, doing the all switcheroo, took a price tag from a cheaper coat, stuck it on a fur coat,

[0:52:10] tried to check out, said I don't know how that test, somebody else must have switched that tag. On cross-examination, the prosecutor, uh, wants to ask and introduce into evidence that whether the defendant was convicted on two prior occasions of misdemeanor fraud of

[0:52:29] a retailer by the same means, switcheroo. And so the question is, uh, is the Question about prior convictions proper, either either to impeach the defendant or to prove that the defendant committed the crime, or both, or neither.

0:52:45 Andrew: So let's let's go to the answers that that you both agreed were incorrect. You both excluded D. It was proper to prove that the defendant committed the crime, but not

[0:52:58] to impeach the defendant.

0:53:00 Andrew: That's a good elimination. I can't think of any standards under the rules of evidence. Right where something would be admissible to prove the underlying fact

[0:53:12] but not as impeachment um that that's everything I know nor could I, Andrew Torrez, nor could I, good work, why I expertly deftly eliminated that one, yep, uh and then although it was part of uh Thomas's uh second chance. You and Andrew both eliminated A. Not proper for either purpose. Also good elimination. Although Andrew Seidel was using the Princeton review method to get there.

[0:53:45] No, no, man. Seriously, if you're taking the bar, time matters. If you see an answer that's an odd man out, just ignore it altogether. Don't even read it. My number one time-saving tip is, is real property, just kill yourself. Don't even just... Yeah, that's also a good tip. Just get up and leave. I endorse that, too. Just leave the room. Okay.

[0:54:09] Yeah, no, obviously, and again, common sense, I think, gets you there, right? Obviously, right? You switch the tags. Like, obviously, you're going to be able to introduce in court, don't you do this kind of thing all the time? And in fact, this is what they call prior bad act evidence, and, and Thomas, you, um Kind of reference this in, uh, in trying to decide your answer that, um, that there is, uh, a question in the Federal Rules of Evidence whether, uh, you can admit prior bad acts, um, because, you know, they, they obviously are, are very prejudicial, uh, so Thomas, you went with C, proper for impeachment but not to prove that the defendant committed the crime. Andrew, you went with B, proper for both purposes.

[0:54:57] And I will tell you, the answer is in fact B.

0:55:02 Andrew: It is proper for both purposes. This, I think, is the first time Andrew Seidel picked an answer different than Thomas.

[0:55:09] And Thomas, I'm sad to say that the lawyer got this one right. Right. So why is it proper for both purposes? It's it's proper for impeachment because you can impeach with examples of prior criminal activity that reflect on the defendant's character for truthfulness. Right. And I seem to recall we had a like a feeding pigeons in the park. TTTB, like a year ago. Right. And it was like, can you introduce the prior conviction for jaywalking? Well, no, you can't introduce the prior conviction for jaywalking because that didn't have anything to do with dishonesty or false statement. But if somebody has been convicted of a crime that involves being dishonest, you're allowed to introduce that to impeach, to be like, come on, you're, you're, you're kind of

[0:55:59] a dishonest person. So it is correct that that you can use the prior, even though it's a misdemeanor, uh, the prior fraud convictions to impeach. Um, you can also admit for proof of the underlying crime uh because here the bad acts directly show. Yeah,

[0:56:19] uh, that that they are relevant to uh the intent, knowledge, uh, or the modus operandi, I think that phrase, um, i.e. that that you that you Behave in a particular way, like, my, um, we always discuss this in in evidence classes, kind of

[0:56:38] like the, you know, the signature. Oh yeah, the Wet Bandits, the wet bandit rule. Yeah, yeah, yes, exactly. Um, and for the record, I hated using the phrase modus operandi, I couldn't think of the non-douchebag way to say that. Unfortunately, well, uh, the the National Council of Bar Examiners are also douchebags, apparently. Well, alright, Andrew Seidel, you win this time. You win this time. But next time... You're still the better man, Thomas. Yeah. Did you shake your finger, you know, reprovingly at him? I'll get you next time, Seidel. Uh, that's

0:57:16 Thomas: Okay. I should have known. Oh, well. It makes sense when you lay it out like that. I should, of course, have remembered the wet bandit rule, since it's a current movie from 1992 or whatever, under Andrew Torrez' as is rules of uh timely evidence, and so, well, you win, I, I gotta hand it to you, you, this is gonna be a big

[0:57:35] boon for your book sales. You've proven, you've proven that you can out lawyer a non-lawyer, and that's, that's good. That's a bare minimum. I'll get them to put that on the second printing. Yeah, the jacket. I outlawed. And I'm very offended that you didn't ask for my endorsement, been on your book. But Uh, perhaps next time, uh, no, let's uh go into the limited use time machine, Mr. Torres

[0:58:00] and tell us who this week's big winner is. Well, and as I am stepping into the limited use time machine,

0:58:06 Andrew: I want to point out we had a hall of fame patron last week who went in under the name Karnak the Magnificent, picks B for TTTBE, and Karnak the Magnificent also got it right, so

[0:58:18] So what you're saying is everybody's smarter than me, even random fictional characters or something. Yes, that is exactly what I am saying, including bits from the Johnny Carson show. No. All right. So off into the time. Meanwhile, at the Hall of Justice. Well, Thomas, you can take some solace in knowing that lots and lots of people got this question wrong. Uh, looked like most of the answers on social media were split between A and C, so I picked the best incorrect answer, which was Paul Robertson, at paul robertson 18 on Twitter, who writes, "I'm going with A because Andrew Seidel poo-pooed that one, and so if I'm right, I get double points." Uh Great game theory strategy there, Paul. Sadly, it was a good poo-poo. A is incorrect. C is incorrect. The only person who got it correct was Andrew Seidel. And there we go. That is this week's TTTBE. Everyone, give Paul Robertson, at PaulRobertson18, a follow on Twitter. And enjoy your never-ending incorrect fame and fortune.

[0:59:30] All right, another big thanks to Andrew Seidel. Check out the book. Very important topic. And I can't wait to

0:59:37 Thomas: Read it myself and make Andrew Seidel write me something very lovely on the cover, because I'm going to buy it through FFRF. So I'm excited for that. And thanks for listening. We'll see everybody Friday for a rapid

[0:59:49] response. You betrayed the law! Law!

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