OA403: SCOTUS Demolishes Church State Separation

Transcript

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

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 403. I'm Thomas Smith. That's Andrew Torrez over there. Andrew, how you doing, me?

0:01:18 Andrew: I am fantastic today, and I am super excited, always excited to have Andrew Seidel back on.

0:01:29 Thomas: As well, I'm so excited to get Andrew on the show because, because, uh, there's a lot of yelling needs to be done and I am here for it. I, I get too stressed out about being the most angry person on this show, and I, I think if all goes well, like the emperor and Star Wars or whatever, I can kind of tempt Andrew over to the dark side of, of, of that. So without further ado, let's get over to our interview with Andrew Seidel. I'm excited, here we go.

0:01:32 Seidel: Guys,

0:01:59 Thomas: Andrew Seidel, welcome back to the show, uh,

0:02:01 Seidel: You for having me, guys.

0:02:03 Thomas: I know I've said it a few times by now, but I, I'm pretty mad at all this, uh, separation of church and state that is not happening lately. There seems to be a real merger of church in state lately, um, so I assume we're breaking down several cases that went the wrong direction. But

0:02:17 Andrew: I think we, we should start with Espinosa versus Montana Department of Revenue, right? That is that is the most galling kind of central direction that tells us what the Roberts Court is going to do over the next three decades unless we do something to stop it, um, and uh, it did, obviously, obviously, you know, there were a number of other cases that that touch on religious issues that have come out over the last three weeks. But that one has, has me the most riled up. Andrew Seidel, is it, have you the most riled up as well?

0:02:50 Seidel: I mean you know the last last month really has completely reworked the state church relationship you know, I mean, I mean, they're, previously there, we, the separation of state and church gave these extensive benefits to churches, and then some burdens, and now churches have argued, and successfully, in the Supreme, under the Supreme Court, and expanded those benefits, they argue that any burden is discrimination, uh, and any benefit, uh, they need more of, basically they're saying, like, if you treat us differently, differently, in a way that we don't like, that is discrimination. And if you treat us differently in away that benefits us, it's because the Constitution says there's a separation of state and church, and we want a lot more of that. And the court has bought those arguments. That is not equality. It's favoritism. It is religious privilege. And that is what the last month has given us. So yeah, let's get to yelling. Let's talk about Espinoza first.

0:02:55 Andrew: Yeah. Yeah. Yeah.

0:02:58 Thomas: Wow. Yeah, it sounds like it's like one of those windows or mirrors they use in interrogations. It's like the church gets to watch, but then if you try to go the other way, then it's a mirror. Sorry, no, you can't touch us on this thing. But we get all the benefits of whatever else you're doing.

0:03:57 Seidel: Yeah, they get to have Have their cake and the American taxpayers have to buy it and eat it, too.

0:04:02 Andrew: Yeah. I want to put this into, you know, sort of the overall picture and talk about, you the rise of accommodationism, the role that Justices Kagan and Breyer have played in all of this, how you and I sort of saw this slow motion car crash coming all the way back in Trinity Lutheran. But Andrew, what happened in the Espinosa case? What were, what were the issues at stake here I

0:04:31 Seidel: Sure. OK, so Montana is one of 38 or so states that have a no aid clause in their state constitution. And so Montana says, the state, quote, shall not make any direct or indirect appropriation or payment from any public fund or monies or any grant of lands or other property for any sectarian purpose and then or school. And that's Article 10, Section 6. These are sometimes mislabeled as Blaine Amendments.

0:05:01 Andrew: Was I was just going to ask you that question so go yeah go right ahead yeah

0:05:03 Seidel: Oh, I mean, that is a name that is meant to paint them as anti-Catholic based on a complete misreading of U.S. history, a deliberate misreading OF U. S. history to paint these as anti-catholic, anti-religious, and therefore hostile to religion and flawed from the beginning. A little bit more on that. The federal Blaine Amendment would have amended the U. S. Constitution to include an explicit no aid clause, kind of like the one I just read from Montana. It was proposed in 1876. I think at the time, I think, don't quote me on this, 17 states already had those provisions, no aid clauses in them, of the 37 or 38 states that we had at the time. 21 added no aid provisions after 1876, so, and, you know, these no aid clauses, they represent a founding American value, and that is that the coercive taxing power of the government will not be wielded to force citizens to support a religion that is not their own. Right? There's no such thing as government mandated tithing in America, that that was banned, um, and, and that's what they were meant to stop

0:06:13 Andrew: And I think we can fairly concede that James G. Blaine and that there was sort of considerable, uh, anti-Catholic animus behind some of the supporters, but none of that is remotely relevant when you are evaluating, right, the intent behind legislation, unless, unless it goes so far as to get, you know, kind of below the Lukumi bar, right? Like if we get to Church of the Lukumi Babalu Aye versus City of Hialeah, where the only purpose for the legislation was to discriminate against certain practitioners, then yeah, you look into it. But generally speaking, like, you can't say, right, if you, if you could invalidate legislation because its supporters were bigots, we would have like eight laws left in the entire country, right? So I we certainly would not, right? Like, so, so I did, I, I'm glad you, you fronted that question, because the Supreme Court has, uh, ever since Trinity Lutheran, which, which involved a similar provision, um, has taken to calling these no aid clauses, uh, Blaine Amendments. I, you having, you know, written the literal book of putting this into into context, that's plug. This is how you know I'm a professional.

I mean, it seems to me that like we, we should, we should say that, you know, that there were, that not everybody who signed up may have had high minded motives for wanting to prohibit sectarian aid, but that doesn't matter, right? Like we don't pull people to ask, like, did you vote for this because you hate Catholics? The, the rationale that you can articulate

0:07:01 Thomas: We wouldn't have a constitution, right? Right

0:07:48 Andrew: Right, which is that money from the federal treasury should not go to benefit one particular sect over another, like, is a perfectly valid rationale, perfectly consistent with what everybody thought the First Amendment meant, means, until now, right? I

0:08:05 Seidel: I mean, absolutely, and I think that the history is even more complicated than that. If you want to read, uh, really an excellent scholar on the subject, Stephen Green, Willamette law school has written extensively specifically about these amendments, and he explains that they were not motivated by anti-Catholic bias, but that these nativist groups came along and hijacked them later on. And I mean, that's pretty obvious if you look at, for instance, the New Jersey No-Aid Clause, which was written in 1776, right? It dates back to way before that. And this is the problem with using history, which Alito does in his concurring opinion, as a guide to deciding constitutional questions, is that history is malleable in a way that a legal principle is not. So the judges can emphasize certain facts, leave out other facts, and then elevate that above a very clear legal principle that state and church shall be separate.

So for instance, you know, you don't hear in any of the opinions that talk about the anti-Catholicism that Blaine's mother was a Catholic, that American Catholics during the 1870s actually wanted some of the funding prohibitions that no aid clauses provided, that they used those funding provisions here in Wisconsin to successfully fight a case all the way to the Wisconsin Supreme Court, the famous Edgerton Bible case, or that the Catholic Church actually was attempting to grab a chunk of public funds for its own school systems.

0:08:32 Andrew: I

0:09:26 Seidel: Or that Sister Mary Klinkhammer, great name, who was writing in the Catholic Historical Review as an associate professor at Catholic University of America, concluded that the federal Blaine Amendment was, quote, suggested for purely political reasons. And though it failed, it inflamed anti-Catholic, anti-foreign, anti-Negro passions for persons. It wasn't proposed to do that. It happened to do that after the fact, says Catholic historian and none, right? None of that makes it into the opinion.

0:09:59 Andrew: I couldn't agree more, uh, with that. I mean, particularly since, you know, well, a common refrain here as we go through, particularly, uh, when we were explaining, you know, the, the difference between originalism and textualism, like, there are lots of things that lawyers do well, um, but but 18th century American history is not one of them. There's no reason to believe that, that we possess any kind of special expertise, uh, and every reason to think that we suck at it

0:10:27 Seidel: I did a law review article on that that came out two months ago called Bad History, Bad Opinion. So go read it if you want to know more. So should we talk about the program, the voucher program?

0:10:32 Andrew: Oh god uh yeah let's uh we're we're one line into to the opinion and

0:10:39 Thomas: So

0:10:36 Seidel: Okay. Okay. So The state, the state of Montana passed a neo-voucher program. This is a way to funnel public money into the private schools, um, and so this was a dollar for dollar tax credit, so basically, you know, the taxpayer donates to this student scholarship organization, all of which were religious. Um, well, let me back up, the taxpayer owes Montana, the state, money, and instead of paying the state, Montana said, hey taxpayer, you can divert that debt to this entity, this scholarship fund, which then turns around and funds religious education, and then the state forgave that debt. So Montana appropriated $3 million to cover the shortfall from forgiving those debts. So the important takeaway here is that, but for the debt the taxpayer owed to the state, that debt that's being forgiven and which only exists because of how Montana was manipulating its taxing power, this program wouldn't exist.

0:10:40 Andrew: Uh right

0:11:36 Thomas: Creative ways one weird tricks to divert money to religion

0:11:38 Seidel: Yes, exactly, exactly. Exactly. Without the state, anyone could still donate to a sectarian school or scholarship program. But Montana deliberately incentivized that donation. OK, so that's the important thing to know about the program. And it very clearly comes under the language of that broad, clear, emphatic and sweeping Montana no aid provision. Right. Shall not make any direct or indirect appropriation. So the Montana Supreme Court struck that whole program down, not just as it applied to religious schools, but as it applies to any schools. And part of the reason they did that was because the Montana Supreme Court said that the no aid clause was also meant to ensure, quote, that the public school system received unequivocal support, port, uh, and then they, they did that because any diversion of funds or effort from the public school system would weaken that system in favor of schools that were established for private or religious purposes, private or religious purposes, okay. Um, so I mean that was why they struck the, the whole program down. And I mean it's, it's still just such an, it's such an

0:11:40 Thomas: Yes

0:11:49 Andrew: Right well

0:12:49 Thomas: Feel

0:12:49 Seidel: Unbelievable loophole it's

0:12:50 Thomas: The anger rising in you so

0:12:53 Andrew: And and and I should say, right, in in the the the background that we're kind of tiptoeing around, that Andrew and I are sort of forced to admit as good law is a 2002 case called Zelman versus Simmons Harris, right, um, and that upheld direct vouchers in Ohio, um, even though the vouchers could be used, uh, to private religious schools, right. And and that the the the Zelman versus Simmons Harris decision, um, I, you know, five four in 2002, so I guess it would be seven to the, you know, today. Um, but that really formed kind of the the model, right? Right. Like everybody knew. OK, so this Ohio model is legitimate if you want to, if you want to try and and and divert in, you know, sort of a secondary way, federal tax dollars to parents to then be able to spend at schools, even if those are religious schools.

0:13:08 Seidel: I mean

0:13:56 Andrew: And so then all of these other programs are kind of like, you know, testing the waters to see, OK, well, we know we can do that. But but, you know, what can we use these? Can we use this kind of workaround? And and and the state of Montana? I mean, I don't know if we need to go into sort of the rule one accommodation. But but but I think I mean what was interesting is because of the constitutional provision, right, the way in which Montana initially implemented the program was by accepting out religious schools. They created an administrative rule called Rule 1 from the Department of Revenue that said you cannot use the scholarships funded by these entities, which have been funded with incentivized tax rebates, at religious schools.

0:14:43 Andrew: And it did so by changing the definition of education provider that was in the statute to exclude. And I want to set this up because I think it's important for the language of the decision. Any school, quote, owned or controlled in whole or in part by any church, religious sect or denomination, end quote. And I know this is going to be the hardest part for you on this, on the show, Andrew, um, I, but seriously, I want you to steel man the ADF's argument for right, what, look like, make the case of why, uh, you've specifically said, um, you don't count as an education provider if you're controlled in whole or in part by a religious entity. Isn't that, it's a City of Hialeah, you know, Lukumi bar, aren't you targeting, I mean, especially you, you wrote them out of the law, you're

0:15:35 Seidel: That that that is the argument that they made, um, and I mean it's essentially right, it's essentially the argument that Roberts bought, I mean it is, it is a, it's a redefinition of religious freedom and it's flipping state-church separation on its head entirely. And, you know, I don't want to minimize, there is absolutely, absolutely a religious liberty right at issue here and it's it's a really important right, but it doesn't lie with the three Christian parents that brought the case, it lies with every single taxpayer who cannot be taxed in a way that supports a religion that's not their own.

0:16:20 Seidel: The compulsory support of a religion or god that is not one's own is anathema to our constitution and principles. So, so what Roberts did was look at just that one particular part of the case, as this provision applied to the schools, or rather to the parents, really, and focused on that. So he was looking at the government hand that was refusing to slip cash into the pockets of the Christian schools. But really the hand at issue was the government that's reaching into the packets of all the taxpayers and taking out that cash. So by focusing on the one over here and completely ignoring the one over there, they were able to change the meaning of these constitutional provisions and essentially undercut them in a way that entirely rewrites our understanding of state-church relations going back to 1776.

0:17:14 Andrew: You're your steel man skills your

0:17:17 Seidel: Sorry, yeah, I completely forgot that's what you asked. I got, I got up on my soapbox and I sometimes forget that I apologize, my friend.

0:17:17 Andrew: Steelman skills need work yeah no No, no, it's okay, um, I, I mean, I think we get the point, right? Like, I, I, it, there is, there's a superficially attractive argument that says that, you know, that we saw carry the day, seven to two, in Trinity Lutheran that that says, hey, why are you treating churches differently than other entities? And for that, right, the case that I thought was going to carry the day in Trinity Lutheran, and I thought maybe we had a second chance, you know, second bite at the apple here, although, I mean, you and I were both pessimistic about this case from the start, was the Washington case, right? Right. Right. Was Locke versus Davey. Right, in which the Supreme Court said, yes, if you have a state scholarship program, you can say, you know what? We're not going to allow like that. We're Not going to give out the state scholarship if you're going to use it. I don't know what the Washington equivalent of, you Know, these, you, know, worshipful theology schools are.

0:17:37 Seidel: Yeah.

0:18:24 Andrew: I could I could think of, you know, I could pick up plenty of it, but but but can say like, hey, were using state scholarship funds to prepare for the ministry. Right. That's a direct quote from the language of the opinion. And the state has a rational basis in saying because of the long history of the First Amendment that we should treat that differently. Right. That like, yeah, we can say in general, if you want to be religious, be whatever religion you want. If we want to encourage education, encourage education. But we're not going to use taxpayer funds to encourage religious education. And that's not discriminated. That has never been thought of as discrimination. That's always been thought of as as being on the front lines of, you know, that. Right. It's there's a reason that's prong one of the lemon test.

0:19:17 Seidel: No you're absolutely right. I mean that, and it says that in the law, for any sectarian purpose, right? I mean, and what, that is the steel man argument for the other side. They're claiming discrimination. And what Roberts does is redefine state church separation as discrimination. And that, I mean That's mind blowing. He redefined.

0:19:17 Andrew: Right?

0:19:34 Andrew: So so tell me what you mean by that. Yeah.

0:19:35 Seidel: Okay, so he redefines state-church separation as discrimination, and he does that by focusing only on Christians. In other words, by ignoring and excluding minorities, if only there were a word for that. You know, I know that's a big claim, but here's how he does it. And this is the brief that we and American Atheists and Center for Inquiry and American Humanists wrote to the Supreme Court. We argued that, yes, I mean, I was the primary author on it, but it was definitely, certainly a group effort, a lot of input from everybody on it. We argued that the no aid clauses were necessary to protect religious freedom. And Roberts wrote, quote, we do not see how the no-aid provision promotes religious freedom and then he focuses on the schools, the Christian schools as an example and he writes the department, the state, the state's argument is especially unconvincing because the infringement of religious liberty here broadly affects both religious schools and adherents. He's talking about Christian parents and Christian schools, and only Christian parents

0:20:02 Andrew: Yeah, I mean, you wrote that you You wrote that, right?

0:20:42 Andrew: Yeah.

0:20:43 Seidel: And Christian school, nobody else. But as we already tried to point out, oh my God, the religious liberty right that was imperiled in this case, and that was trampled by the Christian nationalist justices because they only considered the Christian parents, and the Christian schools as possessing that right, was the right that belonged to all of the taxpayers. They failed miserably to correctly understand who exactly possesses the right under the no-aid clause.

0:21:10 Thomas: So are you saying that, like, if you're a Muslim in this state, you cannot avoid your tax dollars funding Christianity? Is that effectively what would happen? So how is that happening exactly

0:21:18 Seidel: It Absolutely. Right here lies with every taxpayer. That's what the no aid clause is meant to protect. And instead, what Roberts did was look at how it applied to parents in religious schools and said that it discriminated against them. But because that tax power is inherently coercive when used directly or indirectly, which is the language in the law, to benefit religious education, it violates that deepest conscience of each citizen. So to go back to the founding, one of the country's first religious freedom laws, the Virginia Statute for Religious Freedom, was set up to specifically prohibit this. And Thomas Jefferson and James Madison wrote in that law that permitting the state's taxing power to be used in this manner is sinful and tyrannical.

0:22:09 Seidel: Sinful and tyrennical. That was the religious freedom right at issue here. The right of citizens not to be taxed to support religion. And it completely, completely was ignored by the court. Did not show up anywhere. Quote, we do not see how the no aid provision promotes religious freedom. It is really unbelievable. Unbelievable.

0:22:27 Andrew: If you're tracking along, this is the discussion we're having here is from pages 18 to 19 of the opinion. If anything, Andrew, you've been understated in describing this. Well, seriously, like, again, last paragraph on page 19, right. Right. And the prohibition before us today burdens not only religious schools, but also the families whose children attend or hope to attend them. Right. With with zero even awareness of the idea that there might be folks who would not want to attend. Right. So it I endorse that 100 percent. I want to say if your brief and that argument won over two justices, right? I mean, we, we lost Kagan and Breyer in Trinity Lutheran.

0:23:16 Andrew: That was 7-2 and this was 5-4. So, um, it, I know it's cold comfort, but seriously, no, but, but you know, yeah.

0:23:20 Seidel: I appreciate that. I mean, I appreciate that. And if you read Breyer's opinion, which is for the most part, kind of garbage, because he ascended, I mean if you were to sum up that opinion, it's basically like look, we justices can decide these kind of on a case by case basis if we want to, you know, like, yeah.

0:23:39 Andrew: Yeah. And it's clear that's what he wants to do. Right. That's been clear since the Texas monument cases. Right? On, you know, the Establishment Clause? Well, you know, it depends on a case by case basis.

0:23:45 Seidel: Yes, yes, absolutely. I means, and that's exactly, but you reading that opinion and read our brief, it is it's a little hard not to think that we didn't have some influence there. So I do appreciate you saying that. I

0:24:00 Andrew: Yeah. Yeah, no, I thought I think you did. I let me ask you this, because the reason I fronted with that question is because, um, there's a strategic question here that I don't know the answer to, right, and that is, it seems to me that the plain error that created Trinity Lutheran, that persists, uh, here in Espinosa, is the idea that entities can have religious beliefs and religious rights, and that's, I, I'm trying to find, you know, like, I'm happy to let Thomas, you know, clown horn this out, but like, I'm, I've been about this long time, I'm like, okay, I, I a historical, it is, and again, you know, if you, if you are, uh, you know, an actual originalist, right?

0:24:49 Andrew: Like the idea that you could read the first amendment and ask, but what about the rights of churches, right. Is, is just, is preposterous on a level that like the most Most religious founding fathers would have been like, right, right. But like, you know, buildings don't have rights. Artificial associations don't Have rights, people have rights, right? And, and so you had this characterization in Trinity Lutheran as you're depriving Trinity Lutherans of its right to participate in a government program, right and, and, well, And that's right.

And that, and that language, right, is reiterated here, right, the part that Andrew read out where he said that the state's argument is, quote, "especially unconvincing because the infringement of religious liberty broadly affects both religious schools and adherence." Well, again, religious schools don't have rights, or at least they shouldn't under the Constitution. And I guess my question, with a thumb heavy on the scale, is, it time to just sort of take, you know, to kind of look and basically say, well, the Supreme Court's Establishment Clause jurisprudence is, you know, borked beyond all recognition, and we need to start over, and we needed to start with some basic principles where the

0:25:22 Thomas: Churches are people my friend yeah

0:25:24 Seidel: Mean,

0:26:10 Andrew: Fundamental unit of analysis is the individual. Or am I just like, just way off base here?

0:26:16 Seidel: I'm writing a Law Review article talking about sort of a grand unified theory of religion and the law trying to get at that. I don't think that is the place to focus. I mean, you know, it goes to what I was talking about at the very, very beginning. Religion wants all of the benefits of state church separation and none of the burdens that come with it. Mean, historically, religion is different. Under our constitutional order, it used to be these two wary animals circling each other, you know, on either side of this tall, strong wall that kept them out of one another's territory. And now we have to think of it as one animal and a parasite sucking the blood out of it. So, you Know, before this was a hands-off, you do your thing and I'll do mine approach. And religion would claim church-state separation to to keep special privileges. And I mean, there, there are plenty of examples of this. Um, and we're going to talk about some of them in a little bit. I imagine, you know, churches are tax exempt.

0:26:25 Andrew: Okay.

0:27:12 Seidel: Um, that's a privilege, but they would claim that as a right under state church separation, church autonomy, uh, resolving disputes, uh, among different sects and sometimes about property, uh, churches being able to discriminate, um, you Know, and they've shifted it again to this idea idea that they get all of the benefits of that state church separation. And when they have a benefit, they're going to take it to court and try to expand it and expand it. Expand it, you give them an inch, they are going to give it mile. And none of the burdens that would come with that state-church separation. That is how they have fundamentally redefined it. And if you want to get to it from a textualist standpoint, it blows my mind because Because this Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.

0:28:02 Seidel: Okay? Just looking at those two phrases, government can't make a law respecting and establishing an a religion. Okay? That's the establishment law. That's a big set of laws that it can't makes. Respecting means, you know, touching on, even in the slightest, or prohibiting the free exercise thereof, right, that's a much narrower set of laws, the government can burden your religion, it can't prohibit your religion, right? So if we are, if those two clauses come into contact and conflict, the Establishment Clause is the one that should win, not the Free Exercise Clause. And now, under this textualist, originalist Supreme Court, Christian nationalist, this bull clown horn, the Free Exercise Clause has eaten up the Establishment Clause almost entirely.

0:28:49 Seidel: It's really hard to know what is left after these most recent decisions by this court. It really is.

0:28:56 Andrew: Well, and I want to ask you that question in a minute, but I do want to push back a little bit because it seems to me that the corporate benefits that historically, you know, historical establishment clause jurisprudence has permitted or required with respect to religious institutions, right? Right. Like being tax exempt. Again, it's not hard. Like from my perspective, it is really easy to justify that in individual terms. Right.

0:29:28 Seidel: Sure.

0:29:28 Andrew: Which is to say, right, that that right, to the extent that it manifests as, you know, how churches file their tax returns, it is nevertheless a right held by the individual that, you knows, is traceable back to core principles that apply to me as a person and not as an institution with, you know, institutional rights. So it, okay, yeah.

0:29:50 Seidel: I think that is right. And so, yeah, I mean, I don't think you're wrong on that. I guess what I'm getting at is the conceptualization of those two clauses has just been fundamentally altered in the jurisprudential zeitgeist.

0:30:06 Andrew: Yeah, zero argument on that, obviously.

0:30:09 Seidel: I'd love to talk more with you about that, actually. I mean, and you know, this came up especially in like, it's most evident in, for instance, the Hobby Lobby decision where you have a one-way corporate veil, which is kind of analogous to what we're talking about here. You have this one-wall of separation where all the benefits flow through and none of the burdens do. It's the same kind of thing. So yeah, I'm amenable to that.

0:30:30 Andrew: On my list to discuss, I don't know that we're going to get there. But let me ask the related question because I think I know the answer. As you move, and sidebar, when you publish this law review article, whether or not you do it with my assistance or not, which I'm happy to offer, we want to have you come back on and talk about it. Because it seems to me that for the past decade and a half, right, I've enjoyed a rather lonely position out on the branch as being a relative stalwart defender of the lemon test, right? For the first 20 or 30 years, I don't want to say most.

0:31:18 Andrew: That's probably not an accurate summary Because, again, we've already established lawyers can't do history. But Nevertheless, there was a significant chunk of legal commentary that was critical of Lemon from the left, right? That was critical if it's, or critical of it from a, from a legal realist standpoint, right? It was critical, critical of its workability of it, right? There is sort of a consensus of, well, Lemon isn't great law, but I guess it's better than the alternative. Um, as with my strong defense of the original Roe v. Wade decision too, like maybe I just, uh, you know, like these cases that sort of the get the, uh, the, the, the legal community going, well, you know, there were lots of problems. Like, I think the original Lemon decision was, was, was, was very well reasoned, created a very, very workable three-part test. Um, and I, I, I think like we have to concede that like that's

0:31:23 Seidel: I

0:32:11 Andrew: That's gone now, right? Like that, that, that, I, I don't know. I mean, I'm asking you as a, uh, as a practitioner in this field, um, are you comfortable citing to Lemon versus Kurtzman anymore, or what do you think, right?

0:32:25 Seidel: Mean, it's going to be very, very hard to do, I think. The one interesting thing about Lemon is that it was a synthesis of all the cases that came before it. So you can cite to all of the different prongs in Lemon in different ways without actually citing to Lemon, which is one of the reasons that the hatred and vitriol directed at it is so bizarre. Are you know, I think a reasonable portion of the hatred directed at it is from the originalists, textualists who are trying to bury, were trying to marry legislative intent as kind of a judicial inquiry. Um, but there's nothing wrong with the Lemon test, it's a, it's actually a good test. The problem has always been that courts are unwilling to apply it and reach the results that it would, would require. And they're doing that. They were refusing to do that because it would lead to oftentimes politically unpopular decisions.

0:32:36 Andrew: Yeah yep

0:33:25 Seidel: And that was the problem. That was the only real problem with the lemon test.

0:33:31 Andrew: I I couldn't agree more. I mean, I, I will tell you, you, I'm sure you know, you know this, but, uh, for, for the benefit of our listeners, the Espinosa decision, right, a, a major, a dare I say a landmark decision on First Amendment jurisprudence, uh, involving the state provision of funds, uh, with, with one intermediary, into the coffers of, of religious institutions, right, which violates prong one of the Lemon test, does not cite to Lemon versus Kurtzman. Um, if you control f for it you will find you know a sarcastic jab jab at it from Clarence Thomas in dissent, because of course there is. But like, like the first sympathy glass of scotch was over the result, right? The second was over the reasoning.

And the third, you know, sort of poured out for, for the death of the lemon test, because, I I mean, it just seems to me that that's really the real harm is not any one individual outcome in any one of these cases, but is sort of going back to Trinity Lutheran, the idea that we have taken what was otherwise clear guidance, right? Right. Like, look, yeah, you can dispute the history or methodology or outcomes from from applying the three prongs of the lemon test.

0:34:06 Seidel: Yeah,

0:34:59 Andrew: But nevertheless, like as a lawyer, one of the things I like to do for my clients, I'm pretty sure you like to be able to Andrew, is to beable to say like I'm relatively confident that X violates the law and I'm relativly confident that Y doesn't. Right. That's part of what we're called upon as lawyers to do. And the problem is that in order, again, seems patently obvious to me, but in order to achieve an outcome, right, which was to preserve the right of Trinity Lutheran to have access to, you know, recycled rubber to repave its playgrounds, Anthony Kennedy, and now, you you know, picked up in in Masterpiece and again in Espinosa, crafted, created a brand new rule that no one.

0:35:53 Andrew: Right. Because it was invented out of whole cloth. Right. There are no standards. There are new prior cases. No one knows what it means. And everything's up in the air.

0:36:01 Seidel: I mean, I think that's fair if you're just looking at a legal principle to apply. Think you can, but I think I know, but but I think you can pretty clearly look at who is bringing the case and figure out which way this court is going to go. I mean, you know, one of the biggest contradictions at the heart of this case, actually, we can just say of this term in the Supreme Court of jurisprudence is that religion is different, right? And I mean it's through all of the decisions, right. Okay, so look at the DACA decision. Roberts is basically telling conservatives, you guys cannot be this blatant. Like, try it again and give me something,

0:36:08 Andrew: I am guilty of that. Yeah.

0:36:39 Andrew: Right.

0:36:40 Seidel: Anything that I can use for cover. Same thing in June Medical, right? Roberts is saying, look, we literally just decided this exact same case, you guys. Give me another targeted restriction on abortion providers and I'll give you the decision you want. But I can't give it to you in the case we just decided. Give me some cover. But not when it comes to religion, right. No cover is needed. In fact, the court will bend over backwards to rewrite the facts and ignore procedure to privilege religion. So go back to the Trinity Lutheran case that we were just talking about. There was no adversity in that case. The parties agreed. The church was allowed to apply for the state grants, right? That should never have been decided. It should have been kicked on procedure easy. The facts of the case, right, we all agree on this playground fiction because it's convenient right now.

0:37:28 Seidel: But the church admitted that that playground was part of its ministry. And still the court chose to decide this case, a critical case, even though there was no controversy. Espinoza, standing is always an issue, but not here. There was no program. The Montana Supreme Court struck the program down. There could not be discrimination because nothing existed. It was gone. And the parents, quote, intended to apply. Apply, and that was enough for this court to hold that the decision violated their free exercise, right, to bring us into the era of government-enforced tithing.

0:37:41 Andrew: Yeah, I

0:38:06 Seidel: Guadalupe, which I guess we'll talk about if we, you know, I mean, it's the same kind of thing, like, that was a summary judgment case. The facts had to be looked at in the light most favorable to the two women who were fired, and instead, Thomas rewrote the facts and expanded this exception beyond all recognition, recognition right at the very least the two women in that case deserved a trial on the facts, but why allow truth when you can privilege religion under the law? I mean, I have never seen such judicial activism, and taken as a whole, I really think it is unprecedented, and this to me is just the biggest clear contradiction and hypocrisy at the heart of the Robbers court right, they are favoring religion in a way we have never, ever seen.

0:38:50 Andrew: Agree. To me, what is troubling is that on religious cases, right, we do not have a we do not have a five four alignment right, we have a 5-2-2, alignment

0:39:02 Thomas: They keep being 7-2 or whatever, don't they what?

0:39:03 Andrew: Yeah, yeah, and And and my reason for that, again, I I really want to hear Andrew's view on this, um, you have five hardcore pro-religious integrationists, right, like, I know that there's not a word to describe their position because the position is just, yeah, fair

0:39:22 Seidel: It's Christian nationalist, it really is I mean that really is what it is

0:39:25 Andrew: Fair no you know that that's right that that that that that That's right. And then you have two justices that I would call accommodationists. Right. And that's that's Breyer and Kagan. That's a position that, you know, used to be associated with conservative justices from the 1970s to about 2000. thousand that that basically you could describe as the view that says the government may prefer religion to irreligion but may not prefer among various sects right or among various religions themselves right and the more liberal tend to tend to include you know Muslims and Jews in that group the more conservative tend to be like well you know I mean it means that you know you can't you You can't prefer Baptist to, you know, to Catholics or what have you. And then you have two constitutionalists left: Sotomayor and Ginsburg. And so, I mean, so it feels like everything is up for grabs. And, you know, as as as rough as

0:39:41 Seidel: No

0:40:28 Andrew: The long term direction of the court looks, it seems like it's it's twice as bad on on religion cases.

0:40:34 Seidel: I I mean, I think that's absolutely true. I mean, you you know, you go to the American Legion case that killed Lemon, that was seven to two ish. I mean, that's a little harder. Masterpiece Cake Shop, seven to twos. Trinity lutheran seven to to. It's incredibly

0:40:45 Andrew: Yep. Little Sisters of the Poor, seven to two.

0:40:51 Seidel: Frustrating to see because you do have the one side that is the five that are clearly Christian nationalists and going to privilege religion, whatever the cost to jurisprudence, the reputation of the court, whatever. And then you have the two whose position may have been at least defensible before you had a Christian nationalist block on the the court, but now are just enabling that block in a way that I don't think is now any longer defensible.

0:41:45 Andrew: A week and a half later, they joined back in with Little Sisters of the Poor, and it underscores, I think, the point that you were making, which is I have no doubt, right? And again, even my favorite justices write opinions that I disagree with, you know, even justices I hate write opinions I agree with, right. I have no doubt that Kagan and Breyer have principled jurisprudential reasons for believing what they do, right, disagree with. Them, we've articulated those disagreements here on the show, but what's disappointing is the point that you made, which is they appear utterly oblivious to the fact that their that their principles can be hijacked by a group with zero, with zero jurisprudential principles. I should say yeah

0:42:35 Seidel: Yeah, I think oblivious is an excellent word to describe their position on all of these issues.

0:42:39 Andrew: So What's left, right? What I mean, seriously, like part of your job with the FFRF, the Freedom From Religion Foundation, is to, uh, provide advice and counseling to individuals, uh, who face oppressive government action, uh, that you know, very clearly obliterates the line between church and state, with like, confidence, can you say, is off the table yeah well

0:43:07 Seidel: We're asking ourselves right now, and not just us and not just FFRF, all the different groups. We have a secular litigators roundtable we're going to get together after this. I mean, but look at what has happened between Our Lady of Guadalupe, Little Sisters, Espinoza, and the PPP program, which we haven't even touched on. But let's not forget that, you know, the Small Business Administration, this boondoggle, this swamp filled with fetid holy water, is a 10-figure transfer of wealth from the American taxpayer churches under that program. Thanks, Trump administration. So that is happening while while this is all going on too. So I mean, there's a lot of fallout right now to figure out. And that is the one thing that we are all, that's the one question that we're all kind of asking ourselves and getting together to decide.

0:43:56 Seidel: The one thing I can tell all of your listeners is that we are absolutely not going to stop fighting. We are not going anywhere. That just makes this fight all the more critical. We're still going to be defending the separation of state and church. And if that means we are shifting from the courts and trying to enforce it there to redefining this basic American principle and explaining to every single citizen why this is so damn important and that you cannot have the freedom of religion without a government that is free from religion, that is what we will be doing. But we're definitely not going anywhere, anywhere.

0:44:32 Thomas: About all the talk of like, we just, somebody needs to game the system and do the satanist school for whatever, is any of that going to be effective here, or

0:44:41 Seidel: It may happen, but look, I mean, the whole point of, of voucher programs is to reward Christian schools. I mean, that's, it was 12 of the 13 voucher schools in Montana and that's because it's really difficult to support a parallel system to a free public education system, right? It's not easy to set that up. It's, it's very difficult financially. So I think you may see one of these, but you And we also know that voucher schools don't work. They don't benefit low-income students of attending failing schools, contrary to the claims that Alito made. They benefit private schools, not even the students, right? So when, let's see, Georgia enacted a neo-voucher program that was really similar to the Montana one, and the state report found that on the years on either side of that, private school enrollment only increased by one-third of 1%, right? So kids weren't being rescued from failing public schools.

0:44:49 Thomas: I'm

0:45:37 Seidel: We were just paying for rich kids to get a religious education. There's so much that's wrong. I mean, vouchers don't work. Study after study shows this. Milwaukee has the oldest voucher program, and voucher students consistently perform worse than public school students. Fraud and abuse is rampant in these schools because there's comparatively little oversight. And if you really want to get crazy with it, discrimination is okay at voucher schools because they're religious. And this is especially against special needs kids, especially against LGBT kids. They teach all kinds of nasty anti-evolution, anti-equality, anti LGBT stuff. The idea of choice is actually bullshit. Sorry, clown horn. You know, the school choice is not a thing. It's only a choice if you're neurotypical, cis, hetero and white.

0:46:23 Seidel: That's when it's a choice. Right. And the worst part about this whole thing is that vouchers are rooted in segregation. So if we are talking about discrimination being bad, which is essentially the heart of the Espinoza decision, discrimination is bad, vouchers were set up to discriminate. They were invented in the wake of Brown versus Board to avoid integration, integration, and religious schools can and do discriminate against students with disabilities, LGBTQ students, and they could or would along racial lines. I have no doubt that's fine. And now we are gonna fund that. And we're funding it because discrimination is bad, according to Roberts. So we are in the upside down. This is unreal.

0:47:08 Andrew: Want to piggyback on that. This Andrew and I express strong opinions on the show from, you know, from time to time or all the time. It is it is well settled in the literature. Right. Right. Like if you if you delve into the law review articles beginning in the in the late 1950s, if you dove into any scholarly discussion of the rise of private schooling and homeschooling in the United States. And again, I say this as somebody who homeschools a special needs child. The history is 100 percent tied to the Supreme Court's busing decisions. Right, like you can you can literally track it on in graphical format and and has been done so. So I just didn't. That was in the middle of an epic rant. It was a really it was a good one.

0:47:12 Seidel: Yeah

0:47:59 Andrew: But I, but I wanted folks to know that, like, that's not just, you know, opinion of crazy lefties here on the show. Right. Like, it is, it is the opinion of mainstream scholarship, scholarship. Um, I'm shocked, not that shocked, that it's been whitewashed at the Supreme Court, uh, but that you know, that these programs are rooted in the desire of, well, yeah, but you're not going to bus my kid, you know, to, sub, to to East St. Louis, right? And and of course, like the busing decisions were predicated on the idea of, well, if we can't force, force you to to have African-Americans share in the benefits, maybe if we force your white kids to share in the pain, you'll take care of everyone. And, you know, white society's solution to that was like, well, yeah, but you can't really force my kid to do that.

0:48:47 Thomas: Still confused, I was trying to ask this earlier, but I didn't know when to to butt in, so, wasn't this a state, or, you know, I know we're talking about a number of different cases, is, but wasn't this a state like constitutional issue, so is it now the case that states can't even have constitutions say stuff like this yeah

0:48:59 Seidel: Yeah, It's a really good question. Um, and, uh, I'd be, be, I'd be interested to hear Torres on this one too. I mean, the the Roberts's opinion seems to suggest that because the the Montana no aid clause, uh, categorizes or talks about a religious status, even though it talks about sectarian purposes also, that that is the discrimination alone. There's a real weird sleight of hand that he does in the opinion, saying, okay, it, the Montana Supreme Court struck the opinion down, or excuse me, struck the program down altogether, and to get around that fact that there is actually no discrimination at all happening, he says, yeah, but there was discrimination in the language of the provision that they applied. So even though they applied broadly and struck the entire program down, the was itself discriminatory. And therefore, even though it wasn't discriminatory in the way it was applied, it was still discrimination.

0:50:04 Seidel: I mean, it's a really, really strange sleight of hand that comes because the entire program was gone. And there is no real way for Roberts to talk about it. So he and another question that opens up is, well, what does this mean for other programs that have been struck down by courts? Because this is the Supreme Court forcing the state to resurrect this program in spite of clear state constitutional commands to the contrary.

0:50:30 Andrew: Love that that Thomas asked that question and sort of, you know, focused back um, in in general, right, state Supreme Courts are supreme when it comes to interpreting the state constitution, right? And so the, I take the the first kind of procedural aspect of Thomas's question to be, how does this get to the supreme court in the first place right

0:50:49 Seidel: Yeah. Yeah.

0:50:52 Thomas: How did it even get I actually was wondering that too

0:50:52 Andrew: Yeah well that's

0:50:53 Seidel: Yeah, I see where you were asking. Yeah.

0:50:54 Thomas: Yeah

0:50:55 Andrew: That's right, and the argument is, and that's why I, I think, and so the argument was that the provision of the Montana state constitution, the no-aid provision that Andrew has described, violates the First Amendment's prohibitions on, I don't know, something not discriminating under, right, like, and so it, I, I share Andrew's view, uh, that it's not clear, right, like, like, this is one of the worst, and again, John Roberts is a very, very smart guy, this is a terribly poorly written decision, right, like usually you can at least figure out what the decision does by going to the mandate, right, like by scrolling to the very, very end and seeing what they tell the lower court to do here, right, and here, is I'm going to read it in its entirety, right.

0:51:49 Andrew: The Supreme Court says the judgment of the Montana Supreme Court is reversed. And the case is remanded for further proceedings not inconsistent with this opinion. And if you're asking, what the hell are they telling the Montana Supreme Court to do? I I think on standing grounds, the only constitutional question is the constitutionality of the Montana no aid provision, right? Right, which is Article 10, Section 6 of the Montana Constitution. And I think they've said that that's unconstitutional. And I think that means that those provisions in every, you know, 38 states, are unconstitutional. But again, this opinion is so badly written and so unclear that I can't say that with confidence, right? And I certainly wouldn't want to prejudice if, if, if Andrew wants to take the position in future litigation that this case doesn't mean that.

0:52:40 Andrew: Right. Like it's it's he would be free to argue it because because this is just an outcome driven case. Right. But but how

0:52:48 Seidel: And an Unclear, cluttered writing, which you're correct about this, is indicative of an unclear, cluttered mind. That's because they're not applying the very clear legal principle here, right? They're retooling absolutely everything in spite of, you know, centuries of precedent here, really. And I mean, another way to read it that is less sweeping, but also very still confusing, is that the Montana Supreme Court's decision itself is what violated the federal free exercise clause, which is really hard to try to wrap your mind around if you've been doing this for a while, so it's, um, well Because it's, it's such an unclear opinion when you go back and read what Roberts is talking about, when he's talking about trying to rebut, uh, the excellent dissents pointing out that, you know, there is, there is no program here, what are you even talking about, um, and you know, I think we are gonna be, I am gonna be in the position at some point in the very near future arguing against this, so I'm a little reluctant to delve too deeply into it at the moment, as, uh, I'm sure Andrew would, will understand.

0:53:31 Andrew: Explained, unpack that one for me, because I don't I Thought I gave you an escape hatch there. But I, but I accept and approve. But, but no, Thomas, did that, I mean, did I answer the question? I mean, essentially the argument was that this provision in the Montana Constitution, and or in an amorphous way, that the Montana decision ran afoul of the First Amendment. And you're right. And, like, the critical aspect of that is when, the when the Supreme Court says that this constitutional provision or this kind of decision runs afoul of the First Amendment, that means that that then becomes the bar. Right. That means no state can do this. Right. And and yeah. And so I think that means.

0:54:43 Thomas: You would think so That's why I haven't heard anyone saying, like, okay, all these other state constitutions just became, or the provisions in them just became null or something.

0:54:56 Andrew: But I think you know, since I'm unlikely to be litigating in those cases, I think that that's probably the best reading from from a procedural standpoint of this case. But but again, like that, that is not to say, you would still feel comfortable arguing to the contrary, given how muddled this case is. But but I would say 60 40 that that that's the only way really to parse through how we got here.

0:55:22 Thomas: Yeah.

0:55:23 Seidel: Didn't, we didn't even talk about Guadalupe.

0:55:25 Andrew: You want to hit us with a good closing rant?

0:55:28 Seidel: It, Guadaloupe is a case about the ministerial exception, so it's not a law, it's NOT a statute, it's strictly this judicial construct, struck, then it says that our government doesn't get involved in internal church matters. So that's not a principle you can read into the text of the First Amendment. It's a principle that only exists as an offshoot of that larger, more universal principle, the separation of state and church, right? So the only reason that courts have created this ministerial exception, which was used to discriminate, is because state church separation is a prerequisite to the church church autonomy embodied in the ministerial exception. And yet, to wrap it all up, in Espinoza, the separation of state and church is maligned, undermined, and cast aside as discrimination.

0:56:14 Seidel: So religion gets all the benefits and none of the burdens. It's just an unbelievable hypocrisy.

0:56:21 Thomas: If people want to fight back how can they support you where the where can they go

0:56:27 Seidel: Please join FFRF, ffrf.org. We really do need absolutely all the help that we can get That if you care about religious freedom, if you care about a secular government, if you care about your taxpayer dollars not going to support religious schools and churches and mega preachers, two to five million dollars went to Robert Jeffress, Trump's buddy. You know, that is what we are doing at FFRF. We are working to stop that and fight those clear, clear violations of the Constitution and of your freedom of conscience. So please join us.

0:56:59 Thomas: Keep up the great work, uh, Andrew Seidel, thanks so much for joining us as always, and it was not quite enough yelling, but it's okay, it was still very good, it was very, very well reasoned.

0:57:10 Seidel: One of these days, I'll have like a scotch or something while we're recording and then you can really get some uh really get some yelling I

0:57:10 Thomas: Oh all right

0:57:17 Andrew: I thought I told you to bring one, but if we

0:57:20 Seidel: Still got work to do after this we gotta record later that's that's the problem

0:57:26 Andrew: Recorded when neither you nor I had work, we would we would still be working on scheduling your first appearance. So, you know,

0:57:32 Seidel: It's true. It's real.

0:57:34 Clip: And thank you, Let's go!

0:57:36 Thomas: And now it's time to thank our top patrons, our Hall of Famers, our all-time greats at patreon.com/law. I love those patrons, Andrew, I love them so much. They really are just the best. And why don't we thank them, why don′t you start us off?

0:57:49 Andrew: All. Right, thank you to Great Dooku Tree, Thomas Kleberg, Bradford Keaty, Mary Perez and Schmeckle, proceed on your way to oblivion. Love you, man. Amicus Flinch. Peter Wilson. Dan from Deerfield. Well, shout out the Deerfield, no shortage of dicta in my briefs. My Intro to law, law cases are real property. 2020 just keeps on giving. If Ken White comes on the show, can we rename it the Snort My Taint Team? Well, you gotta get popat, man. Shut up and take my money, we will. William Drew Collins. Bob Newhouse. Sassy Italy Tours, they have a fantastic Twitter account, by the way. Greg Kreimer. Montana liberals matter, yes you do, uh, all two of you. Jeffrey Stewart, I was granted rid of certiorari and I thought it was permission to see the northern lights. I guess Murder Hornets were just a filler episode. Cheeky

0:58:09 Thomas: That's funny, yeah.

0:58:44 Thomas: I

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0:59:13 Thomas: Think Primer's Better, sorry. Oh.

0:59:32 Thomas: Well We Can do amicus, because you know, Sidle Was on today, so

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1:01:21 Andrew: Lawful Copter says Confederate monuments might be their heritage, but destroying the confederacy is my heritage. I'm not gonna get plastered, Rimmer, just nicely drunk. Can we get cert to appeal all of Thomas's incorrect T3BE answers? I changed my mind, I will never watch The Wire. Well, sorry, that's, that's the patron said. Brad in Texas. Rob M. There's a goat, why is there a goat? Zirkle. I was very, very drunk when I changed my patron name last week. My name this week is no better. Andrew Seidel's Butt Thinks Thomas Should Actually Read Anathem.

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1:04:34 Thomas: Stay at home. Stay the F at home, thank you. Ah, breath. Ah. Yeah. Chad T. Anonymous. The Sarah Connor Chronicles is the best Terminator content that isn't T2. Wordorigins.org. Both primer and primer are legit pronunciations, but I'm not touching Illinois Nice, amicus Boxer Yeah No kidding, amicus. Box are closing concessions. Don't Stand So Close to Me, 20. But for a Cause charity drive. But Liz Weeks, sorry, Adam Costa, Derrick Jay. Alden Waltz. All right, well, that's the show. Thanks for listening, and goodbye. Andrew is right. Wrong, baby. Right Wrong is like a record, baby. Right. That was Awesome, a big easy blast for me, uh, still laughing

1:04:54 Andrew: Thank you word origins dot org that's amazing oh yeah

1:05:26 Thomas: That was nice Nicely done, uh, not enough judges overrule objections with roundhouse kicks. The Yodelers. Preparing for fiery re-entry. Ronda 2020, because why the F not. Clown Hornet. I Started Drinking Again. Malika Chandler. Poot Crack and Tush. Soggy Pants. Matthew Vernon. Adopt a homeless pet and oppose declawing and ear docking. David in Brooklyn. Fukasumi. No, the Ayn Rand Institute asking for a taxpayer bailout is peak 2020. Don't take legal advice from Laserbeam Monstrosity, Attorney at Law. Heather L. Jeremiah's Fancy Microwave Emporium. Ian and Allie. Dan Irizarry. Eli Bosnick. Sam Donow. Oh Balls. Sam Buck. Mitchell. No commute, so behind on podcasts. John Roberts basically just said lie better next time, okay?

1:05:27 Andrew: Yeah. Yes.

1:06:15 Thomas: Yep, that applies, applies to many of the decision. Alexandra Chalupa aka Natasha Crunchwrap. Michael Conrad's. And finally, Conrad Michael's Champion Patreon, uh, of all time, but you should try to catch Conrad Michaelson

1:06:24 Andrew: Yeah.

1:06:31 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:06:36 Thomas: And now it's time for T3B answer time. Ah, man, I think Andrew Seidel probably got this one right, but maybe we'll be surprised. Let's find out.

1:06:45 Andrew: So this was a complex but commonplace Civ Pro question with, as Andrew pointed out, a whole bunch of like attractive distractors really stuck into it. Right. And and and the way at Thomas, you analyze this, I think, as well as any non-lawyer could could possibly do that. Right? So you begin with the premise. So whenever you're doing a federal jurisdiction question, which this was, you begin with the with the promise that federal courts are courts of limited jurisdiction. State courts have Right. You get to go there. Right. But but to be in federal court, you have to fit. Broadly speaking, I know Andrew's not going going to get on me for this, but like, our listeners will, broadly speaking, you got to fit into one of two categories. Right. You either have to have a violation of federal law or the Constitution, right, and you can understand why you would want federal courts to resolve those, or you have to have diversity, right?

1:06:55 Seidel: Yeah

1:07:04 Thomas: Yeah, right, right. Yeah.

1:07:47 Andrew: And and the idea by that goes dates back to the founding, and the ideal was, um, hey, if, uh, you get into a dispute, you live in, well, let's say Maryland, because California, it wouldn't be a state for another 150 years. But yeah,

1:08:01 Thomas: Yeah, but somewhere across state lines, it's a carriage ride basically, right?

1:08:04 Andrew: Exactly. Right. And so you wouldn't want, if I live in, if I lived in Maryland and Andrew Seidel lives in Virginia, we wouldn't want me to be able to sue Andrew in the state courts in Virginia, in the State Courts in Maryland, because presumably, you know, we're all rich white landowners. And I know all, all of the judges, you know, every every person would know every state judge in their state, and and you'd get homered. So you get to take a state law claim and bring it in federal court if there's diversity of citizenship of the parties. And again, broadly speaking, the two things you're looking for is that the parties are from different states, and that the amount in controversy is seventy five thousand dollars or more.

1:08:53 Andrew: And and then what happens is the way you approach the question is you ask, is the, you start off with, is the original lawsuit good, right, and you would say, yeah, original lawsuit is good, shop owner

1:09:07 Thomas: Can you quickly, one thing that I'm confused about that I mean, I guessed on, on, but what's the difference between where you are incorporated versus where you do business? I'm sure there's a lot of rules there, but quickly speaking, do you just need diversity among some of those, like one of those things?

1:09:07 Andrew: Yeah, No, no, this is, this is actually one of the many attractive distractors that are built into this super complicated question. So here's the rule. For a corporation, right, and it says the wholesaler is incorporated, so it is a corporation. A corporation is deemed to be a citizen of the place where it's incorporated. So it's a citizen-of-state B. And also the place where its principal place of business is, regardless of whether that makes it the citizen of multiple So here, the wholesaler is incorporated in state B and so therefore is a citizen of state B, also has its principal place of business in state A, so it's a citizen of state A. And if you then misanalyze the question and you ask yourself, could the shop owner have sued both the distributor and the wholesaler in the the initial lawsuit in federal court, the answer would have been no.

1:09:32 Thomas: Oh, okay. Right. Right.

1:09:33 Seidel: Yeah.

1:10:26 Thomas: Interesting.

1:10:26 Andrew: And again, if you're thinking about this from the fairness perspective, right, this is a doctrine called complete diversity among the parties. It means what it says, right? So if I live in state A and I sue somebody who lives in state A, and also somebody in state B, well, the framers were like, well then you got somebody from state A on both sides. We're not worried about you getting homered. So you don't get into federal federal court if there's not complete diversity, right, so if, yeah, no.

1:10:53 Thomas: Wait a minute. So that means the initial one wouldn't have made sense?

1:10:57 Andrew: The initial one was fine. The initial one was shop owner versus distributor. Shop owner Nope.

1:11:01 Thomas: Yeah, but the distributor Both has. Oh,

1:11:05 Andrew: Nope, the distributor was a citizen of state B. and state C.

1:11:07 Thomas: Was state B And C. You're right, sorry, I mixed it up. Yeah.

1:11:10 Andrew: Yeah. Nope, yeah.

1:11:10 Thomas: You're correct, right.

1:11:11 Andrew: Um, so, uh, but yeah, if, if the shop owner had tried to sue both parties, then that would have been, uh, remanded back to state court, right, they would, they would not have been in federal court because there was not complete diversity over the parties. But here, what you ask yourself is, was the initial suit OK? The initial suit was good. It passes the test for diversity jurisdiction. And so then, if, and Andrew cited the precisely correct provision of, of the federal code, right, 28 USC 1367 supplemental jurisdiction. And let me tell you, but let

1:11:22 Thomas: Now it's like he's a real lawyer. Supplemental

1:11:50 Seidel: It's not that impressive like that I mean 1331

1:11:53 Andrew: Me, but here's the rule on supplemental jurisdiction. And again, the way you think, and I'm not even going to read it to you, right, because it's not important that you apply a particular test. What's important is that, you know, you use the thought process. Right. Which is so now we get the idea that sometimes you can have state law claims in federal court. What about the other situation where you have to, you don't have diversity? You have two residents of the same state, but I'm suing over a federal statute. Right, well, if, if, if I live in state A and Thomas, you live in state A, uh, and I sue you for a violation of federal law, we go to federal court in state A, and then the question you might think is, well, what if I'm suing you for a whole bunch of stuff, right, that includes both the federal law claims and also state law claims, does it make sense to

1:11:53 Seidel: 1332 and 1367 like Like, I think most federal lawyers know that stuff.

1:12:08 Seidel: It's long.

1:12:57 Andrew: Say, well, you can bring the federal law claims in federal court, but the state law claims have to go back to state court because there's no diverse, that's stupid, right? Like, that that would be a monumental waste of judicial resources to have us litigating in two separate courts over the same common nucleus of operative facts, which is the key language. We just say, all right, once you get into federal court, the federal court can exercise supplemental jurisdiction over claims that it would not otherwise have so long as they're part of the same transaction. So long as They arise out of that common nucleus of operative facts, then we're not going to have this like one weird trick to get out and then there'll be two different lawsuits and it'll be just supplemental jurisdiction. So that's why it's B. That's why Andrew was exactly correct. But but but I wanted to say like that you you worked through and analyzed it, I think, really, really well. Um and this is a fiendishly hard question if you don't do this sort of stuff every day

1:13:24 Thomas: Yeah. Right. I

1:13:46 Seidel: Oh, yay.

1:14:00 Thomas: Almost picked B, I should have, I, yeah, it was hard to grasp why in my non-lawyer mind. I was like, which is going, going to be the better, no answer, but I fell short. I was close though.

1:14:09 Seidel: I mean, part of the reason I was able to do that a little bit easier is because the original lawsuit, like, very clearly checked the diversity And amount and controversy. So I stopped paying attention and that suit I knew was good. So, you Know, I didn't have to do all that that you had to do. I through it. It was like check, check, and then done. And that's why I was like, and you're just

1:14:16 Andrew: Yeah

1:14:17 Thomas: Yeah.

1:14:30 Thomas: Well, it's honestly just because I forgot or didn't, you know, I know I've heard you say it, but I don't retain the memory of the $75,000 thingy. So like, imagine if it had said the question had said, the wholesaler asserted a $76,000 counterclaim, would the answer then have been an A or would you still say B is the best?

1:14:49 Andrew: No.

1:14:49 Thomas: No answer.

1:14:50 Andrew: Because remember that both the distributor and the wholesaler are both incorporated in state B, right, so they can't be diverse, regardless of the amount and controversy requirement, grant.

1:14:58 Thomas: So it's, I, okay. So no, so the, so the money didn't even matter really because they already weren't gotcha. So it's only in federal court because of the supplemental jurisdiction. That was the only reason. Andrew Seidel, you are victorious. I'm glad because I think last time we both got it wrong or one of the last time so you know it's good pretty sure that happened, but it's okay, we can check the tapes. Uh, you know, it's been a rough, uh, I don't know, several years for separation of church and state, so you knows a nice moral victory for you. I'm sure you

1:15:01 Andrew: Yeah, no, yeah, you're right, that's exactly right, and

1:15:18 Seidel: That doesn't sound right.

1:15:35 Seidel: Yeah, there's

1:15:36 Thomas: Needed it

1:15:36 Seidel: Way too much 2020 left. That dawned me the other day, and I just keep thinking about that.

1:15:39 Thomas: Yeah yeah well Let's uh have Andrew hop in his limited use time machine, tell us, us, who this week's big winner is.

1:15:48 Andrew: Well, Thomas, today's winner is Peter R. on Patreon. Yes, that's right. You can win T3BE on Patreon as well. Who says B? B sounds like the name of a relevant law thing. Maybe C if the second claim has to be a different lawsuit, but I would guess B. Well, stone called guess. Thank you, patron Peter R., you are this week's winner. Later.

1:16:11 Thomas: That's our show, thank you so much to Andrew Seidel, as always, for coming on. And this is, it really is, it's just disgusting what's been happening with church-state separation under this court. It's so outrageous. So support the FFRF, everybody, and other organizations that are doing something about it. And we will see you on Friday.

1:16:31 Clip: He's not even a lawyer and he's kicking your ass.

1:17:04 Clip: This podcast is a production of Opening Arguments Media, LLC. All rights reserved. It is produced with the assistance of transcriptionist Heather Loveridge, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Deborah Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki. Follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Argiments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.