OA429: This Court Will End Marriage Equality

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 429. I'm Thomas. That's Andrew. How you doing, Andrew?

0:01:24 Andrew: I'm fantastic, Thomas, how are you?

0:01:26 Thomas: Doing well. I am always better once I hear that you're fantastic, no matter how dark the world gets. Mr. Fantastic is always fantastic.

0:01:37 Andrew: That would be such a great like 1943 superhero, right? I could be like punching Nazis and like, uh, well, well

0:01:42 Thomas: I bet it is. I mean, there's the fantastic Mr. Fox, but I bet there's also Mr.Fantastic. I sure there Is. Oh.

0:01:51 Andrew: That's that was actually the original name of the leader of the Fantastic Four, right, so Mr. Fantastic, so there you go.

0:01:55 Thomas: Okay. Makes Sense. Uh, so, you know, quick note here, um, just wanted to take a second on Hall of Fame patron day, which we love, we love Hall of Fame patron day, but, uh, I want, I can't remember how much we've mentioned the fact that among the patron perks we do for the Patreon only show, not only are there no ads, we also switch it so that the bar question is first and then the Patron Patron thanks is later. That's another little perk that some people requested, just in case, you know, if you're of a mind to skip it, which you shouldn't because it's always fun.

0:02:34 Andrew: They're amazing they're so funny. Well,

0:02:34 Thomas: But yeah, But if you are somebody who doesn't want to hear the patron shout outs, I don't know who that is, but some people, that's another perk that you get. I can't remember if we've mentioned that or if we did. It's only been like once. And not to mention also, this show comes at you early, a whole day earlier than everybody else gets it if you are a patron, so just wanted to uh re-up those patron plugs, that's patreon.com/law, everybody. Thursday.

0:03:03 Andrew: And, and let me add to that, uh, if you're at the three dollar and up level, right, which includes all the Hall of Fame patrons, uh, it's kind of our, you know, redheaded stepchild of our Patreon tears, we're supposed to, uh, from time to time, uh, put out newsletters. Well, uh, I, I do that, I give you some, uh, behind the scenes looks where I, you you know, I talk about some of the mechanics of the show, you know, our numbers, what we're doing to promote, that kind of thing that some people find interesting. Also, I have, you've probably noticed this as of late, I have done research and I have had intrepid associate Morgan Stringer do research on topics for things that seem on Monday like, this is definitely going to be a main segment.

0:03:50 Andrew: And then on Tuesday, I'm like, well, all right, maybe it'll be a C segment. And then by Wednesday, it's OK, that's a wild card. And then by Thursday, it' maybe we'll talk about

0:03:59 Thomas: It's history. It's actually yeah, it doesn't even exist anymore. All

0:04:04 Andrew: That in three weeks. And so a really, really good example of that is the Trump executive order declaring New York City and Seattle and Portland anarchist jurisdictions. Morgan did like a 12 page legal memo that was amazing. We never got a chance to do that on the show. Probably by the time time frees up, it will be too late and it will no longer be timely. So I released that memo out to three dollar up patrons, and we're going to continue to do that, like give you access to legal and judicial resources. So that's us flagging our, our Patreon, sorry for doing that, but, you know, we do like to keep the lights on around here, and, um, we love everybody that, uh, that supports it, we love all our listeners, but we love you more if you support the show. So, yeah.

0:04:35 Thomas: Right.

0:04:53 Thomas: Just wanted the info out there for anyone thinking about it, but now let's get to our show. So, Amy Coney Barrett, uh, lots to talk about here, what, when is this starting up, give us the, the bare bones info on, on when this, uh, the hearings are starting. Yeah.

0:05:00 Clip: The law breaking down

0:05:17 Andrew: So hearings are starting virtually, over Zoom, uh, yesterday by the time you're hearing this, or if, if your patron, get this early, uh, Monday, October the 12th, is, is when the Senate Judiciary Committee is going to hold hearings over Zoom because the White House is a cesspool of disease, uh, regarding, uh, Amy Coney Barrett. Um, a couple of things with, with respect to that, and, and, and I think we've talked about some of these issues. But a lot of kind of COVID related optimism is going through liberal circles, even in otherwise reputable news magazines of opinion, that none of this is going to stop them from cramming Amy Coney Barrett through. He those

0:06:04 Thomas: Can I pause to, uh, just throw something in that I, that I noticed today, I mean, it's a little bit older news as you're hearing this, but I, you know, we, we, uh, have a long-running contest of who's the most evil, evil genius, you know, whether it's Bill Barr or, uh, Mitch McConnell, you know, competent evil people, and I

0:06:28 Andrew: Are like running backs. One a one and one a. But yeah.

0:06:30 Thomas: Know Hall of famers, all-time greats. I think that McConnell wins, and I'll tell you why, it just came out today, I saw a thing where McConnell is avoiding the White House, quote, you know, like the plague, you might say, um, and I think that shows that McConnell actually knows that they're totally full of crap, and he is fully aware that that, you know, they're anti-science, they don't know what they're talking about when it comes to coronavirus. Whereas Bill Barr was there. I think he actually drinks the Kool-Aid, whereas McConnell just pretends to drink the Kool-Aid and knows what he's doing.

0:06:33 Andrew: Yeah.

0:07:09 Thomas: So he wins. Most evil, competent genius.

0:07:10 Andrew: Well, that's yeah. No, that's, that's a that'S A strong that's a Strong argument. So, building on top of that, look, everything shy of the vote itself is something that can be handled just by an appeal to the decision of the chair under Robert's Rules of Order, which means that Mitch McConnell can declare his interpretation of the rules that says, yeah. Yeah, there's absolutely nothing. And he can make these interpretations as narrow as he wants. Right. So the interpretation can be, yes, our interpretation of in-person hearings to confirm a Senate to to confirm the advice and consent of the Senate with regard to a Supreme Court nominee in an election year during a pandemic is that that can take place over an online platform.

0:08:00 Andrew: Form, right? Like that, that, that's an example of the kind of ruling that McConnell can and likely will give in the event that there is any challenge. So all of these talks about like maybe there won't be a quorum, and there will be, right. And these Republicans, like, at the at the end of the day, remember that these republicians will come back and infect their colleagues rather than miss votes. Right.

Like that, that they will not let coronavirus stop them from voting in another right wing justice. So why are we still talking about it? We're talking about because the strategy in my mind has really kind of crystallized. And it crystallized, you and I talked about this on SIO, when the opening question of the presidential debate was, aren't you big hypocrites for cramming through Amy Coney Barrett with like three weeks left in the election, I guess a month then, when you stole Merrick Garland's seat when Obama had literally his entire fourth year left. And President Trump said, well, elections have consequences, Clown horns.

And and that's right. The more that we are able to illustrate that this is a naked power ploy to put a right wing activist on the court to reach conservative outcomes, comes, the more I think we build support for taking the remedial measures that we need to take in 2021, right, which include court packing, blowing up the filibuster, a new Judiciary Act of 2021. I believe very, very strongly in that. So I want to continue to equip you to know that this is an open political assault on the gains that individuals have made through the Supreme Court over the last 50 years.

0:09:12 Thomas: Yeah.

0:10:01 Andrew: And we are helped by the fact that Clarence Thomas is on board with the brigade of there is no quiet part, right? It's all, we say everything loud now. And um, and this was going to be, this is another one of these that uh migrated from main segment last week to main segment this week. It it got a lot of press, and uh we're kind of doing our Tuesdays, as you know, this is Amy Coney Barrett days. Yeah.

0:10:10 Thomas: Yeah. Yeah.

0:10:28 Thomas: Spill over Fridays. Oh, that too. Yeah. Already

0:10:32 Andrew: Um, was we flagged this last week. I've talked about this on social media and in the Opening Arguments Facebook community. This was not a dissent to a denial of certiorari in the case Davis versus Ermold.

0:10:53 Thomas: Is rare, right? Do you usually see a concurrence of why you've denied cert?

0:10:59 Andrew: That is incredibly rare, you are correct. So I want to walk through this because this got a lot of press attention. And this is one of those instances where it's you might look at it. And oftentimes on Opening Arguments, what we do is we say, yeah, well, this is sort of an alarmist take or whatever. I think the press was not alarmist enough in how egregious this filing was. So so let's walk through this. The case of Davis versus Ermold. This is Kim Davis in Kentucky. You remember super bigot Kim Davis, who decided in the wake of the Obergefell decision, although she was the county clerk responsible for issuing marriage licenses, that she didn't want to do her job.

0:11:58 Andrew: Because doing her job made her sad, and it made her sad because she belongs to a religious belief that for some reason values the fact that she disagrees with some things with respect to her religion means, like, I can't even parse the argument. Right.

0:12:19 Thomas: It's Christian privilege. She gets to enforce her views on other people and work in government. And it occurs to me that, you know, what's funny is how outrageous that was that back in the day they held her up as this, you know, example of like righteousness. And I imagine, did she make an appearance at an RNC? I can't, something like that.

0:12:39 Thomas: And And I was just thinking, she's got an upper game these days, you know, because now you have a lot of people who uh wave guns at protesters, protesters, and you know, are the are the mothers of uh actual killers, uh so I I just was realizing in retrospect, in terms of all the gremlins that Republicans are willing to hold up as examples, she's actually kind of, she's lost a step.

0:12:39 Andrew: I'm Sure. Yeah. Yeah. Right.

0:13:02 Andrew: Yeah, thanks.

0:13:03 Thomas: That's That's how bad things are. Hey,

0:13:04 Andrew: That's great. Just what I need for you to encourage the next generation of Kim Davises to also bring guns to work. But

0:13:11 Thomas: I'm Just I'm here telling it like it is, man. That's where We Are. Yeah.

0:13:11 Andrew: Yeah, no, you're Right. Look, and reason this is preposterous is performing a governmental function is not a personal endorsement, right? So she's, she's the one that issues the marriage licenses. She says, I'm not going to sign my name to a marriage license uh that that is a same-sex marriage. Um, no word. Uh, and the fact that there is no word means there is zero evidence in the record that she refused to issue divorce licenses that weren't on biblical grounds, right? Like it's, it's, I do not understand and I do not want to understand the demarcations in Christian bigotry and why it's gay people that seem to trigger their, well, this part would be a sin, sure, all the other stuff I do is also a sin, but like this is a different kind of sin, I don't get it, I don't want to get it. In any event, she refused to issue marriage licenses to same-sex unions, was then instructed by by her boss. You can't do that.

0:14:19 Thomas: Yeah.

0:14:19 Andrew: And so then she said, well, what I'm going to do is I'm just not going to issue any marriage licenses to anybody, which does not solve the problem, as you might think. She was ultimately terminated. She also sued civilly, and I don't want to get into the procedural aspects of this because it's really complicated and not relevant. She was sued for violation of civil rights correctly by two separate gay couples that came before her to whom she refused to issue marriage licenses. So that's what this lawsuit derives from. It derives from her efforts to invoke qualified immunity to say, no, no, you can't sue me for violating your rights because I had a right under Kentucky RIFRA under the First Amendment under whatever to do the bigoted thing that I did, right, and every court that has heard

0:14:32 Thomas: Then you're Just not at all Doing your job

0:15:22 Andrew: This argument has responded with, that's a super dumb argument, Kim Davis, go back home and do your job, including the Supreme Court, nine to zero. Right. So so again, I'm going through this for the the background so that people understand this argument is terrible. It is so terrible that Clarence Thomas does not want to reverse the Sixth Circuit's opinion saying this argument is terrible, he does not want his fellow justices to consider it because he knows the argument is terrible, but he also wants to opine, oh, by the way, this argument is super terrible, but Obergefell, right, the Supreme Court's 2015 decision recognizing gay marriage as a fundamental right under the Constitution because uh marriage is a fundamental right under the Constitution and discrimination on the basis of who you are marrying is quite plainly a violation of the Equal Protection Clause.

Um, Clarence Thomas has used this as an opportunity to issue an opinion concurring in the judgment, uh, that Samuel Alito signed on to, that is a three-and-a-half-page screed about how bad Obergefell is. It contains a footnote about how bad Employment Division v. Smith is, and if you think that that's an accident, that is squarely aimed at the Supreme Court's October term fall docket that has just begun.

0:16:01 Thomas: Thank you.

0:16:55 Andrew: The day after the election, on that Wednesday, day, the Supreme Court will hear oral arguments in a case in which the litigants are asking the Supreme Court to overturn that notorious liberal Antonin Scalia's decision in Employment Division v. Smith and essentially codify into the law as an affirmative right under the First Amendment's Free Exercise Clause, the federal and state standards under RFRA. So that's coming. That is before the court. That will be heard by the court on November the 3rd. And there is a footnote that just says, as a result of Smith, accommodations for those with sincerely held religious beliefs have been reviewed as the domain of positive state and federal law.

0:17:44 Andrew: And it is clear that that is signaling to the rest of the right wing, like, hey man, uh, we can, we can change that, you know, we can We can Go Ahead, Yeah.

0:17:52 Thomas: Yeah we can do anything now yeah weird

0:17:55 Andrew: Um, but uh, the main text is truly appalling. Um, and and again, the the parts that have been quoted, I think, are over backwards to try and shield the naked bigotry, uh, of this opinion. Um, and I'm about to read from it and then we're about to discuss, you know, sort of how dangerous that is. So it begins, "In Obergefell, the court read a right to same-sex marriage into the 14th Amendment." Again, bracketed, no, they didn't. Marriage has long been a right under the 14th Amendment, and discrimination on the basis of gender is the equivalent of discrimination on on the basis of race.

0:18:41 Andrew: And everybody agrees that Loving versus Virginia is correctly decided. Right. So, yeah, yeah.

0:18:46 Thomas: That they didn't say Loving vs. Virginia was also, you know, the same thing to.

0:18:51 Andrew: Then it goes through and says several members of the court noted that the court's decision would threaten the religious liberty of the many Americans that believe that marriage is a sacred institution between one man and one woman. Again, parenthetical. No, no, it wouldn't. You are perfectly free to believe stuff that the law permits and just say, I'm not going to partake in that. Right. Think about it. And again, I don't mean that blithely. Right. Like sects of Southern Baptists believe that drinking alcohol is illegal, is immoral and ought to be illegal. And you know what? They're perfectly entitled to believe that. They're just not entitled to have us.

0:19:28 Thomas: Make other people believe it

0:19:30 Andrew: Yeah. Incorporate that into the law. Could you imagine, right, being hired as a grocery store clerk and saying, well, my religion forbids drinking alcohol. So I'm not going to let you ring up alcohol on my window, you know, on my conveyor belt here at my station. Like, you got to put that back. Are you kidding me? Like, do your job. Anyway. And then that reference is to Roberts's dissent in Obergefell, which we're going to go back to. I've mentioned it a lot, but it is worth going back to and reinforcing how terrible that is. The dissenting justices predicted that these assaults on the character of fair minded people will have an effect in society and in court, allowing governments, employers and schools to vilify those with these religious beliefs as bigots. Those predictions, again, being advanced by the minority in Obergefell, did not take long to become reality. And they tell the story of Kim Davis through, you gauzy here.

0:20:38 Thomas: I don't care how many filters you put on nevermind

0:20:41 Andrew: Then They say, Obergefell, this is page three, enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss. Miss. For example, relying on Obergefell, one member of the Sixth Circuit's panel in this case described Davis's sincerely held religious beliefs as, quote, anti-homosexual animus, end of quote. In other words, Obergefell was read to suggest that being a public official with traditional Christian values was legally tantamount to invidious discrimination towards homosexuals. Leaving aside the problematic and archaic language of homosexuals, um, that statement is correct. Right. Like, like what religious adherents who believe that same-sex marriage should be prohibited are arguing for, the the honest way to characterize their argument is, yes, we are bigoted against this particular outcome, but we are bigger because we think that that God is bigoted against it and we want an exemption to that. Like But

0:21:51 Thomas: Yeah. They They're so good at casting their oppression of other people as them being oppressed. I mean, it really is They Think they have the right to oppress other people and anything short of that means they're being oppressed. It's an absolute Joke. Yeah.

0:22:00 Andrew: Yeah. But But But it is within the definition of the word discriminate. Right. Discriminate means Draw a difference between. So I, I have used this example on the show when talking about, uh, the rational basis test versus strict scrutiny all the time. It, it would be preposterous to say if I own a 7-Eleven and I post a no shirt, no shoes, no service sign, I am discriminating against shirtless individuals. It would be, no, seriously. And it would be disingenuous.

0:22:11 Thomas: Yeah.

0:22:33 Thomas: I know. That's what the hippie was yelling at you. Hey, man, you're discriminating against me.

0:22:35 Andrew: Yeah. Yeah. And I would say, yes, I do not want you in my store if you fall below certain levels levels of personal hygiene and social norms. And I'm willing to say that. I'm willing to saying, yeah, I don't want the shirtless guy in my 7-Eleven. I don't want him in my seven eleven because he's going to get his gross sweat all over everything. I don't want them in there because being shirtless in society is not an acceptable thing to do unless you're at the beach. Right.

0:22:40 Thomas: Yeah. And in these times, what about discriminating against people without masks, Andrew? I

0:23:14 Andrew: Right, exactly right. I am discriminating against you when you don't wear a mask.

0:23:19 Thomas: Know my rights. I've read the Constitution. I'm an American. I get to be here spreading my pandemic germs to everybody. Doesn't work. You're allowed to discriminate on some things. That Is what you are saying. Yeah.

0:23:26 Andrew: Yeah. And so This is if your argument is you are entitled under the First Amendment to discriminate against same sex marriage, make that argument. But but what we have here is we have an effort to rewrite what the word discriminate means being advanced by sitting by two sitting justices of the Supreme Court. It is not like, look, I'm sorry that calling bigots bigots makes bigots sad. The idea that this is a constitutional principle is I'm literally struggling for words. Right. It is the it is as preposterous as any right wing mischaracterization of the most extreme liberal positions ever articulated by the Warren Court.

0:24:21 Andrew: Right. Like the idea that we are now about to enshrine into the Constitution denying equal rights to millions of people in society because the people who want to deny them rights get sad when you call them bigots for denying them rights. It is it's it's preposterous and terrifying. And press reported this as Clarence Thomas inviting the court to reconsider Obergefell, which is true. I don't think they highlighted the Orwellian nature of attempting to redefine discrimination. I wanted to do that. I also wanted to go back and we've talked about this numerous times. This opinion is aimed squarely at John Roberts.

It cites to his dissent in Obergefell eight separate times. And as we have talked about, I have quoted, I will not do so here again, other than the conclusion, the, you know, just who do we think we are? How dare we overturn the religious institution that has guided all of humanity, quote, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs, end of quote. I've quoted that part to you before. I have not quoted extensively from the section in Robert's opinion that makes the Uncle Frank argument. And so I'm going to do that here of, yeah, well, if you have same-sex marriages, why not plural marriages, right?

0:25:10 Thomas: Well.

0:25:56 Andrew: Right. One immediate question. This is John Roberts. One immediate questioning invited by the majority's position is whether states may retain the definition of marriage as a union of two people. Although the majority randomly inserts the adjective to in various places, it offers no reason at all why the two person element of the core definition of marriage may be preserved, while the man woman element may not. And and it goes on like that for.

0:26:20 Thomas: Is uh is is being a number not to a protected class, like if you're it's a little different to say, well, if you're willing to allow a man and a man to get married, why not 10 people? It's like, well, first off, I don't care, like, If somebody One of my favorite uh Louis CK jokes of all time, from uh back 15 years ago, was where when people were making these stupid arguments back in the day, he said, "It's what's next, you're gonna let a guy marry his dog," and He's like, "Why would I care if somebody married their dog," and That was one of my favorite things, uh, yeah, that's all ruined now by new reputation his, but still it was a good joke at the time, and it was very true.

Um, I, so I don't care about, you know, multiple people either, but like that it's, it seems to me to be very different to be like a third person doesn't strike me as like a protected class in in the way that simply being a different gender than is typically allowed to marry back in the day is a protected class. Am I reading that right at

0:26:38 Andrew: Yeah, right. Right. Yep. Yep, yeah.

0:27:25 Andrew: No, you're reading that 100% correctly. And there are sort of two points here, right? Yes. First, discrimination on the basis of numerosity is different than discrimination on the base of race. That's pretty straightforward argument. And the second is, even if you dig behind the analysis, contract law, and that's all marriage is, right? It's a special kind of contract. Contract law between two people is different than contract law between three people, right?

0:27:36 Thomas: All? Yeah.

0:27:54 Thomas: Now, I know business, Andrew. You can never have an agreement between more than two entities. If I know anything about business, that's never happened. We wouldn't know how to handle it. It would break the system.

0:28:01 Andrew: So, look, yeah, I mean, I agree with you that, obviously, if it does not affect me at all, why should I care, um, that there are, and what I would say is when you have a consensual polyamorous relationship, awesome, right? I think there are, and again, 100% of these are religious reasons to be concerned about some polygamous institutions in this country, right, particularly like FLDS, fundamentalist Mormon compounds and enclaves in the far west. But so, so, I think there are problems to resolve that are not problems present in same-sex marriage, right? Like when, when two gay people come to the clerk's office and say, Kim Davis, give us a license. We want to get married. You typically don't think of that as the one person is, you know, being compelled to do that.

0:28:12 Thomas: Yeah. Well, But I mean, those wouldn't, though, all those same arguments apply to any marriage. I mean, it's certainly possible that any marriage could be

0:29:08 Andrew: Right. Shotgun marriages. Right. That you used to talk about.

0:29:11 Thomas: Yeah, could be like exploitative in some way, or it could be totally fine. Yeah.

0:29:12 Andrew: Yeah. Exactly right. And And doing in this, by the way, we have given this issue more serious legal and philosophical consideration than John Roberts did. It. So I'm going to read from it. John Roberts just does the Uncle Frank technique of asking rhetorical questions with zero legal citations. So if the same-sex couple has a constitutional right to marry because their children would otherwise, quote, "suffer the stigma of knowing their families are somehow lesser," end quote, referring to the majority opinion, wouldn't the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry, quote, "serves to disrespect and subordinate," and quote, gay and lesbian couples, why wouldn't the same imposition of this disability serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? And then the only

0:29:36 Thomas: Justice Roberts

0:30:08 Andrew: Citation on this page and a half long rant Yeah. Is to

0:30:11 Thomas: Gets it All right. Oh, no, he means that in a different way. Sorry. Oh,

0:30:13 Andrew: Yeah. It is to a New York Post article on married lesbian thruple expecting first child, right, which he thinks is Yeah.

0:30:19 Thomas: God. New York Post is garbage by the way. Yeah.

0:30:25 Andrew: But, but he, right, and it was designed to be alarmist. This was a 2014 article of like, there are three lesbians living here, like, right, uh, and uh, an Emory Law Review article, "Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage," which again is sort of the exact opposite of what John Roberts is saying. Then he says, I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may be relevant differences that compel different legal analysis, but if there are, petitioners have not pointed to any. You know why? Because, because this is

0:30:28 Thomas: Because

0:31:05 Andrew: Not a plural marriage case, you clown horn to

0:31:05 Thomas: They weren't Yeah, but just, no, we're right, we're right back to uh, uh, Yeah.

0:31:11 Andrew: Mike Pence. Yeah, right.

0:31:12 Thomas: I was gonna say Pence accusing Kamala of not answering his question while dodging the question he was being asked like, yeah, of course they didn't say that. They were had nothing to do with anything. Yeah.

0:31:18 Andrew: Yep. Right. If you came in in Obergefell and you were argued. Now, look, so here's why plural marriage like the judges, the justices would look at you as if you'd grown a second head. Yet, like not even Larry Klayman would come in with that argumentation. Right? Like it's it's preposterous. All right. So that is the there is two pages of John Roberts doing Uncle Frank's "what about ism" to, you know, soon they'll be marrying their their hand puppets. And then third point from the Obergefell dissent, John Roberts is not Antonin Scalia. He is not Neil Gorsuch. He does not write sarcastically. And now I want to read you from near the end of his dissent in Obergefeller. "Nowhere is the majority's extravagant conception of judicial supremacy more evident in its description and dismissal of the public debate regarding same-sex marriage. Yes, the majority concedes, on the one side are thousands of years of human history and every society known to have populated the planet, but on the other side there have been quote 'extensive litigation', end quote, quote, quote, 'many thoughtful district court decisions', end quote,

0:31:29 Thomas: Oh, harsh words yeah I

0:32:36 Andrew: Quote, countless studies, papers, books, and other popular and scholarly writings, end quote, and quote, more than 100, end quote, amicus briefs in these cases alone. What would be the point of allowing the democratic process to go on? It is high time for the court to decide the meaning of marriage based on five lawyers' better informed understanding of a liberty that remains urgent in our own era. The answer is surely they're in one of these amicus briefs or studies, end of quote.

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0:34:56 Andrew: Yeah. So that is that is John Roberts saying, on the one hand, the bigot position is the position of, quote, thousands of years of human history in every society known to have populated the planet. End of quote, that's his words, not mine. And on the other side are a bunch of amicus briefs that like, you know, philosophers and crazy lefty lawyers have filed in this case. And why should we have there to be a debate? Let's just, you Know, find the answer in one of these amicus griefs here. Level of derisive dismissal is important for this reason. John Roberts says in his dissent in Obergefell, it begins with, the majority's decision is an act of will, not legal judgment.

0:35:46 Andrew: The right it announces has no basis in the Constitution or this court's precedent. So, people keep asking me, we did this last week, and this is how I'm going to conclude this segment, for questions the Senate Judiciary Committee needs to ask Amy Coney Barrett. This is a straightforward question that she cannot dodge. Hodge. Do you believe that the Supreme Court's 2015 decision in Obergefell versus Hodges is binding precedent on the Supreme court? That does not require you to issue an opinion as to future cases that requires you to discuss your judicial philosophy. And if she refuses to say, go look, she might just lie, right? She might just say, oh yes, I absolutely do believe that it is binding precedent.

0:36:34 Andrew: But at least we will have her on record as lying about it. If she dodges that, in my view, that is disqualifying. You should not. The dividing line that has been clear for every Supreme Court appointment is you do not have to opine on cases that are or may come before the court in order to prejudge them, even though we know the answer to that. Right. But you do have have to answer questions about your judicial philosophy. John Roberts has said, I don't think Obergefell is precedent. And I think we need to know, does Amy Coney Barrett believe that it is precedent or not?

0:37:10 Thomas: Um, I wanted to ask, if if someone was trying to be an extreme optimist, could they come, that's not me, but like, pretend it's me, could they say, well, I, you know, this was uh a concurrence that was just two douchebags, um, and then we're adding one, you know, nut job, but that only gets you to three, right? Like, do you, would how would you answer that kind of stupid, stupid optimism. I mean, that optimism.

0:37:35 Andrew: So I've seen people try to do this because of, and I think it's a fantastic, fantastic question, uh, because of Gorsuch's well-reasoned uh, and humane decision in the Bostock versus Clayton County cases, right, those are the uh Title Seven cases in which the Supreme Court, six three uh, said that uh Title 7 of the Civil Rights Act of 1964 applies on the basis of, of sex, meaning on the basis of sexual orientation, as being inclusive of sexual orientation and gender identity. And so they say, look, like, Gorsuch isn't a bigot. He wrote.

0:37:44 Thomas: Even if you put him aside. So do you think it's the case that Roberts and Kavanaugh are not really willing or care about making this weird public thing that Thomas and Alito just did, but that even if you lost Gorsuch in this future court with Amy Coney Barrett, you still have Thomas Alito for sure, probably Coney Barrett I would think for sure as well. And then all you need is, uh, Roberts and, and Kavanaugh.

0:38:31 Andrew: Yeah.

0:38:46 Andrew: And Kavanaugh. And there is nothing to suggest that Kavanaugh is anything other than a doctrinaire right winger when it comes to the rights of LGBTQ people. But, but, but I want to add, instead, thinking that Gorsuch would not join in in a reversal of Obergefell, in my opinion, grossly misreads his opinion in in the in the Bostock versus Clayton County case that that has to do. We talked about this on the show, but we have new listeners who maybe didn't hear our breakdown of that. Go back, listen to our breakdown of that episode. Gorsuch does two things in that opinion that would distinguish when it comes to any subsequent case seeking to overrule Obergefell. Number one, he writes a long caveat. It is over a page that says, "We have not considered how this issue would interact with appellants' sincerely held religious belief claims because no claims were raised in any of these cases."

0:38:55 Thomas: Yeah. Yeah,

0:39:58 Andrew: So he explicitly provides that that carve out. And number two, the reason he reaches his result in Bostock has to do with Gorsuch's unique brand of textualist originalism, which he says, "We go by the original public meaning of the statute at the time that it was written, as understood at the the time that it was written, and if the meaning is clear, then that controls even over the intent of the people who wrote it," right? So when it says you may not discriminate on the basis of sex, we apply the 1964 definition of on the basics of sex, which was between men and women, and then he says the plain meaning is super duper clear that on the bases of sex means you can't say a woman can marry a man, but not a woman.

0:40:54 Andrew: That's discrimination on the basis of sex. That is a narrow textualist conservative approach that we've been talking about ever since Hively versus Ivy Tech and the Flom and Ripple concurrence, again, from two Republican appointees. So that's the result Gorsuch reached in the Bostock cases. That issue is not present when you were talking about the fundamental right to marriage, which is nowhere present in the plain text of the Constitution or in the plane text of The Fourteenth Amendment. And so I do not I think so in that case, Gorsuch will then default to originalism, which is what did the people passing the 14th Amendment and or the people passing the First and Fifth Amendments in 1865 and 1791 respectively think that it protected?

0:41:54 Andrew: Protected, and they absolutely certainly did not think that it protected gay marriage. Uh, and so, uh, I, I think that that Gorsuch will have no, no problems joining a 6-3 conservative majority to overturn Obergefell. Um, and if that scares the hell out of you, uh, then maybe you should be a part of this, maybe you should be out there working for Joe Biden, phone banking for Joel Biden, voting for Joe Biden, and making the case publicly that this is a conservative religious backlash against a Supreme Court decision protecting LGBTQ rights. And, and this has always been their end goal, is to say that that decision is illegitimate and return, and return LGBTQ people, uh, to second class status in, in this country. That's what they want, that's their religion says, uh, and Clarence Thomas just said it a little loud, and Samuel Alito said it a little louder, uh, but, but that's on the horizon, so

0:42:57 Thomas: Pack the court. Yeah. Vote, win, pack, the court, everybody. It's all, it's all we can do now. That's what we have to do. It is our only option. So, all right. Well, thanks for that depressing breakdown, Andrew. Uh, let's get to a less depressing topic. Let's hop on over to our interview, uh with Naomi Andrews about the plain language conference all And we are joined by Naomi Andrews. How are you doing, Naomi?

0:43:10 Andrew: Yeah.

0:43:24 Naomi: Doing great. Thank you so much for having me today, Thomas and Andrew. How

0:43:28 Thomas: Our pleasure. Pleasure. Andrew already kind of gave us the preview on the last episode, but you're here to talk about the Plain Language Conference, right?

0:43:37 Naomi: Yes, definitely, definitely. Um, so yeah, Access for All Conference, you can go look at it at accessforallconference.com. It is a plain language conference that also has a legal component to it. Now, not everybody understands what plain language is, even though it seems like it's pretty self-evident, um, but that's really what it is.

If you think of like on Reddit where they say "explain it like I'm five," plain plain language is making sure that every person who needs the information that you are communicating can understand it and that they can act on it. And there are a lot of areas where that can be a real problem, as you can imagine, like in the law.

So initially this conference was being hosted by Clarity International, which is a legal plain language organization organization where a lot of lawyers and attorneys got together to rewrite the way that they were doing things, to come to terms with what needed to be done to be more clear in filings and to be mehr clear with their clients, all of those types of things. And it was going to be in Washington, D.C. That's when I first kind of tagged Andrew to see if he would want to speak at the conference, and then, you know, COVID came along, so all of that went out the window.

And we decided to go ahead and bring on two other host organizations, the Center for Plain Language, which I'm the executive director of, and then Plain Language Association International, which is our international arm. And so we all got together, and we have been working night and day to try to get a virtual conference together to explain not only to people who are already practicing plain language, but to new people, how they can help improve other people's lives and accessibility.

0:45:24 Naomi: So some of the areas that you might be more familiar with in the law would be in immigration court. Plain language also has a component to it of what language is the reader reading in. And if the documents are presented to somebody in immigration court in English when that's not the language that they speak, then they have no chance of getting a fair trial. Another area of the law would be for pro se litigants. I have had the unfortunate opportunity to be a pro se litigant in the past. And I spoke with the judge. He told me that I needed to file a motion to modify something. And I said, well, is that a form? How do I do that? And he said, said, well, you wouldn't want me to tell the other side how to proceed.

0:46:11 Naomi: So I can't tell you that. And I did a lot of Googling, a lot of searching, trying to figure out how to do it. And I mean, mind you, I am a pretty intelligent person. I have made my way through this world through a lot of tough circumstances. And so I was doing a lot of digging to try to see how I could do that. And I realized that that information was not going to be found on Google, that that information was so complex that it would only be found really in a classroom. And so I unfortunately did not have the outcome that I wanted on my case, and that was my first experience with understanding that the law was too confusing for the average person. If I couldn't understand it, then what chance is somebody who hadn't had the privileges that I did?

0:46:52 Thomas: So given that Andrew is speaking, I imagine, Andrew, you're not worried this is going to put you out of a job, are you, or maybe you don't want a job anymore, yeah.

0:46:58 Andrew: Well, it Yeah, right, I mean, any more than, uh, you know, doing this show for the past four years has has done that. Um, no, I was, I was very, uh, excited to be a part of this conference, and, and Amy, thanks for for reaching out to me. I mean, obviously the idea that the law should be demystified is kind of a foundational core value of of this show, and you know, as we go through, you know, even in my civil practice, right, one of the things that I'm always trying to emphasize to folks is, you know, you're not, you're not paying for the magic words on a piece of paper, you are paying for having a lawyer as an advisor.

And so, you know, when I'm talking to my clients, that's often like the first phone call that we have, is the phone call of, look, like, if what you just want is a document, and sometimes I send people away and I have them not engage me, right? Like they will, they will say, I want an operating agreement, and I will say, cool, why do you want an operating agreement? And they'll say, because I'm a one-person LLC and the bank will not open a business banking account for me unless I have an operating agreement.

0:47:26 Naomi: Right.

0:48:20 Andrew: And those people, I will tell, I could charge you money for this, but seriously, just go download an operating agreement off the internet. You're one guy. You do not need a document to govern in the relationships with yourself Right, so, you know, I'll tell them, uh, don't pay me, um, use something off the internet. On the other hand, you, if you're partners, then you want an operating agreement, but you don't want that because you, it has the magic Latin words in it, you want it in order to cover potential disputes by, in between the partners. And so, you know, so I love, I wholeheartedly endorse this. I think there's plenty of lawyer stuff that I would be happy to have, you know, sort of go the way of the dinosaur, because we've migrated over to a system where it's more accessible and people can understand. And then I come in to guide people through the system, and, you Now, actually apply my expertise rather than, you know,

0:48:29 Thomas: You can agree with yourself yeah yeah

0:49:19 Andrew: Writing, whereas the party of the first part of hereby, you know, I don't, no one needs that.

0:49:24 Naomi: Exactly. And, you know, I think one of the things that Thomas would really like is we're going to have a speaker there named Robert DeRoy, and he is an attorney from South Africa, and he's the creator of the Comic Contract. And now he created this for migrant farmers who do not speak the same language as their employers, to make sure that they could understand all the responsibilities of their job, how they get paid, sick leave, anything like that. So he drew the contract in comic book form so that everybody could follow the pictures. And it is legally binding, really. And I mean, every day there's so much information that people are missing because we too often do not think about who our intended audience is.

0:50:14 Naomi: And, mean, that's what we're doing when we come together to learn all of this. It's really an ongoing process of unlearning some of the things, some of the bad habits that we've been taught. You don't have to use the biggest word every time.

0:50:29 Andrew: Right now I feel attacked, that's fine.

0:50:30 Naomi: Right. Well, that was my whole point of coming on the show is to say, Andrew, you need to stop. Right

0:50:35 Andrew: We

0:50:33 Thomas: That's to attack Andrew, yeah, I also think in this country we have a real disdain for people who are speaking to us in like their second or third language. Somehow, I think it's very natural human impulse to think, like, well, this person's dumb, they can't even, and you're like, I speak less than one language and this person is over here on their second or third or fourth, and they don't know quite as many words as I do in English. It's so natural to be like, well, therefore they must be done. It's like, no, they're probably amazingly intelligent. If you ever go to another country where you don't speak the language, all of sudden you're like, oh my god, this is impossible, this is really difficult. So

0:50:44 Naomi: Exactly And so we have professionals there whose job is to design ballots to make sure that they're readable.

0:51:18 Thomas: That's really cool. I, we give the uh, the final plug here of where somebody should go, what they should do to uh, to join in on this all.

0:51:26 Naomi: Yes, definitely. So go to accessforallconference.com. And if you would like to register, please select a member ticket, even if you are not a member of any of the host organizations, select a member ticket, and enter code OPENARGS, and you will get a pretty significant discount. I we would love to have people there. You can watch Andrew's talk. You Can Watch All These Other Ones, and the best part about it is that it is asynchronous, so we have pre-recorded content. We will have a live show portion, and then you have access to everything for up to a year or more after the conference, because we do have a second portion coming up in May. So again, accessforallconference.com, register as a member, and put in the code OPENARGS. I is, especially when, um, I mean, you don't have to pay travel. You don't Have to pay for lodging. You get to hear from experts from New Zealand, Japan. You Get to hear From people in France, Germany, Estonia, all around the world. World and here right here in the USA.

0:52:17 Andrew: It's for 75 bucks you get into the whole conference so um that's pretty great for these judicial conferences so thank

0:52:42 Thomas: Right, thanks, so so much, Naomi, uh, really appreciate that pitch and uh, looking, yeah, forward to that, thanks, um, for coming on the show, all

0:52:49 Naomi: Thanks Thomas. Thanks Andrew. Have a great day.

0:52:51 Andrew: You

0:52:52 Clip: And thank you, Let's go!

0:52:54 Thomas: Now is time to think our Hall of Famers, our all-time greats over at patreon.com/law. We'll start with Nevin, Dude is Cow, Wesley Glenn Brock becoming a patron to get five episodes a week now to catch up on months of backlog, Matt Rogers for Virginia 47th House District, Casa Agria is the best brewery, uh, Emperor's Brewery is close second, Bradford Kitty, Great Dooku Tree, Thomas Kleberg, Mary Perez, I'm an ancestor of Marcus Aurelius' stoic tutor Junius Rusticus, what, by ancestor I assume they mean, not ancestor, you wouldn't be an answer descend it yeah I think you mean descend it, but I don't know, Buddy Guyerson for Senate, together we can defeat blank, Cube Boxman, we are ruthless, may her memory be a blessing, idea for a screenplay, Air Bud, Man's Best Amicus, please vote early and in person to save our democracy, oh wow it finally happened, Conrad Michaels has been overtaken here, all the folks ahead of him, two fabulous lesbians who would love a picture of a house plan for our new house, William Drew Collins, Bob Newhouse, Sassy Italy Tours, spends more on Barolo and Barbaresco per year than Trump pays in taxes, Greg Kreimer, reelect, reelect Senator Doug Jones, vote, just vote, vote, god damn it, vote if you seek Amy, she's in the GOP's pocket, cheeky breeky, well there goes my excitement for my new tools, are IP

0:53:33 Andrew: That he was a descendant of Them, and Marcus Aurelius. Yeah, yeah. Yeah.

0:54:22 Thomas: RBG, Jennifer for Chukowski, I'm going to sleep this off, please let me know if there's some other way we can screw up tonight. Follow me at Hans Royal for unlimited fame and fortune guaranteed. All right, my call, an old, mad, blind, despised and dying king, that dickens, always with the compliments, Alexis Crone. Fly like a hot dog freedom eagle, say it with me, Amicus Angry Mac Face. Stop, ask a question a president of Finland would ask, Matthew McConaughey portraying Matthie McConaughey. Statehood good for D.C., Puerto Rico, American Samoa, Guam, Northern Mariana Islands, and U.S. Virgin Islands. Center black trans sex workers. The Books That Burn podcast, reviewing fictional depictions of trauma since 2019. Postal police, stamping out crime and delivering justice since 1775.

0:55:10 Thomas: Vote early if you can. It's Thursday and I still don't have a Patreon name. The obligation of subjects to the sovereign is understood to last as long and no longer than power lasts by which he is able to. It cuts off the episode. This episode is brought to you by the letter Q for quarantine. Andrew McFarland changed my Patreon name so that I didn't jump every time you read it. Why is Stormy Daniels tax deductible but my but not Only Fans payments?

I call shenanigans, Murray Gregerson. Why did the baker go to law school? To learn about torts. I move for a bad president thingy, in Illinois we pronounce it Illinois. Love the work you guys do for us lay people, let's keep fighting for our democracy. This Patreon's name snapshot was taken between 2020 10 8, uh, some weird symbols and 20, yeah, another screenshot I like it, good, dash infinity dash infinity, David Gould putting a pin in this patron name for later.

Jake Braun, I'm too sexy to vote Trump, too sexy vote Trump, Trump needs to be re-impeached, I'm a lawyer you know what I mean, when I Christopher Brown online law school, the third grader what could go wrong, lawful copter says he was going to vote Biden but Trump tweeted space force and now I don't know what to do, the wheels of justice turn faster than the speed I change my Patreon name, vote John Ossoff reverend and Warnock for Senate in Georgia, Adam Kerrigan not that, Chris Wallace, Brad in Texas, if you're reading this there's been a mistake, there's a goat, why is there a goat, give to modestneeds.org, give to modestneed.org, Andrew Seidel has a nice butt, I'll be honest my heart's not in it right now, oh sorry, let me drink lots of water, I like peeing totally clear.

0:56:53 Thomas: Zirkle Bosnick, Pugapagacorn 2024, Odin the Law Dog is getting a human sibling, Vizelin the Kobold Monk, Stormy Decisus, Polly Hernandez, the previous patron name is true, the next patron name is false, every judge on my ballot is listed as both Dem and Repub, fny judicial elections, that's interesting, Thomas Takes the Bar is not on Pornhub, Emily Rainbow, Spence Duncan, Dixon Coffee, I had a Trump interrupts my name change joke queued up and then he got covid, I can't work under these conditions, Jason Kobas and hotspear.com supports the jujitsu

0:57:36 Andrew: And thank you to new book The Greatest Gift of All, A Logical Path from Religion to Humanism by Mark McLean, out November 30th, pre-order now. Thanks to punching fascist is not enough, get into good trouble, dealing with Republicans is playing prisoner's dilemma with someone that always betrays you, drop ethics, go with game theory, liberal coastal scotch drinking anti-air fryer elites, yeah, Naitrex, John Nolte, Darth Mandy Pants, 750 bucks won't treat your covet 19, no it will not, 13th century Saxony gravel truck lawyer, no idea what emotion in lemonade is but it sounds delicious, what am I anyway, I'll tell you a childhood treat story on the next Patreon episode, I am the bad things that happen in Philadelphia, stay gritty, Jennifer for Cratch, Diogenes the cynic was right, unionized Brooklyn friends, NC peeps, even non-citizens, visit tinyurl.com slash poll observers, this truly is the darkest possible timeline, wash your hands then vote for Joe Biden, civilpoliticsradio.com fridays at 7 p.m eastern on Valley Free Radio, Steven Balticate, Sandoval, John Bilderback, there are three weekends left to save the republic.

Give what you can. Do what you can. I shake my little tush on the catwalk, on the cat walk. I shake my Little Tush on the catwalk. Philip Kizer, Andrea the arbitrary and capricious, Eric Alsman. I like traffic lights. I love traffic lights. I like Traffic Lights, stop equivocating, they're not the same, vote Biden, baseball law states 2020 doesn't count, not true.

0:59:09 Andrew: Go raise once upon a time I was falling in love. Now I'm only falling apart. There's nothing I like being totally Totally clear of the heart. I feel like I need some sheet metal now. Absion, terrified for the future and lost any shred of hope for humanity. Pain's trumpet, Trambolis, La Machine Infernal. A world without simile wouldn't be like anything. The Wandering Gambler, I don't want no Trumps. A Trump is a guy who can give COVID to me. These song references are pretty outstanding this week. SCOTUS uses the Bob's Country Bunker model of religious tolerance. Milo Meadsong is working the polls. Good job. Therese Chan, Boston Live Show 2021 with lobsters and karaoke and flapjacks. Join your labor union.

0:59:55 Andrew: Together we bargain, alone we beg. The Republican Party is a string of reprehensible characters. Nova Kingway, I'm sorry, James, Dr. K, Doctorate Night, homeschooling our kids in the day, pretty sure my wife is a superhero, Chad T. Anonymous, the arc of the moral universe is Jeremy Baramy, wordorigins.org, your source for legal terms from 13th century Saxony, stop, ask a question T. Gomez would ask, R.I.P. Notorious RBG, excuse, hope you're all safe and well, have a good week, airbud 69, it's a talkie dog world out there, oh that's excellent, nerd gnostic Liz, constitutional kumite weeks, weeks. Derek, poor COVID caught a nasty case of Stephen Miller. Adam Costa, Jay Aldenwalt, a string of unpronounceable characters, two immigrants now sadly saving up enough to emigrate.

1:00:45 Andrew: Rhonda 2020 because WTF not. The coronavirus apocalypse is making me too depressed to think of anything clever this week. Malika Chandler, tricycler manslaughter. Is Andrew legal representation for a Cenobite? Let's put a pin in that. Soggy Pants, Matthew Vernon, Sakashite Fukasumi wonders whether do-gooder isn't quite the insult Preeti Patel believes it to be. Declawing and ear docking. Don't take legal advice from laser beam monstrosity attorney at law, Heather L., Jeremiah's fancy microwave emporium, Ian and Allie, Danny Rosari, David in Brooklyn, Eli Bosnick, Sam Donow, Teresa Gomez, Mitchell, no commute so behind on podcasts, it's 28 days till election day, please vote, vote. Natasha Crunchwrap wants you to support the Justice Policy Institute.

1:01:30 Andrew: Sam Buck, philatelists support the USPS. And our all-time great, our favorite, your friend and mine, Conrad Michaels.

1:01:39 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:01:45 Thomas: Right now it's time for T3BE answer time, let's uh, let's see how I did.

1:01:51 Andrew: Yeah, this was a an straightforward evidence question, plaintiff in a car accident wants to introduce a single still photograph from a videotape aired by the local TV news station investigation of, uh, their accident. Um, I, I don't know why that like seemed to throw you technologically, you were like, how does one make a photograph from a videotape? But yeah, you just, like even in the, even in the nineties, we had the technology to like take a single frame out of it.

1:02:22 Thomas: If what threw me was, was it a photograph? Like if they took the frame, then, you, what would you need the original video to? You know what I mean? Like I didn't really understand the process that would do that, but then also, you've, the other videotape has been, you know, I don't know, I still don't get it, maybe you do. Well, how so, how do they do it, huh? Explain the technology, Andrew yeah

1:02:39 Andrew: Yeah. So, well, we'll do that on a Patreon only special, how to take pictures from videotape, uh, look for that coming to soon, so, uh, crucial facts, um, the defendant, uh, denied negligence, that is, denied that, uh, they were driving, uh, in a way that violated the duty of care, and denied that the plaintiff's injuries were severe, right, denied the damages component, um, the, the plaintif demonstrated that the original videotaip, uh, was, had the footage erased and has, has been reused, and the photograph shows the plaintiff moments after the collision with bloodied head protruding at a grotesque angle through the broken windshield of his, of his car, defendant objects to the admission of the photograph, should the photograph be admitted, let's first talk about your eliminations, you eliminated A, no, because the plaintif has failed to establish that a duplicate could not be found.

1:02:47 Thomas: Without

1:03:38 Andrew: Elimination, right, so when when the original is not available, Federal Rules of Evidence 1001 D and E govern the admission of duplicates, right? And so the photograph was made from the videotape, it is arguably an original of that photograph, but even if it's not, it is a duplicate of a videotaip where the original ist unavailable, right. Right. So, you do not have to show, what you do have to show in order to introduce a duplicate, is that the original can't be found, you don't have to say this is the only duplicate that's out there. Right. So, yeah, yeah.

1:04:21 Thomas: That did not make sense, okay

1:04:23 Andrew: It makes no sense. And you were right to eliminate it. You also eliminated D, which says yes, because a photograph that establishes a disputed fact cannot be excluded as prejudicial. And You were like, I don't I don't understand that at all. Um, here's what they were trying to trip you up on. By the way, good exclusion, uh, because, um, the federal rule of evidence regarding unduly prejudicial evidence, uh. Is Rule 403. And it has absolutely nothing to do with whether it establishes a disputed fact or not, right? Something could establish a fact that is disputed and material, but still be so prejudicial that

1:04:25 Thomas: Good really huh

1:05:03 Andrew: You would exclude it. Absolutely, right. So, Rule 403 says that the judge can exclude evidence where the danger of unfair prejudice substantially outweighs the probative value of the evidence, so good elimination on D, maybe by accident, uh, you then, you picked the best no answer, no because the plaintiff, uh, has failed to produce the original videotape or a duplicate, uh, that was B, but, but you went with the best yes answer, yes, yes, because it tends to prove a controverted fact. And Thomas, I'm pleased to tell you that is the correct answer, that

1:05:05 Thomas: Even exam is too easy, give me a challenge, yeah yeah

1:05:39 Andrew: It sure is. The defendant denied that plaintiff's injuries were severe, showing the video, the single photograph of the videotape.

1:05:49 Thomas: Showing a a picture of his head coming off probably would help there

1:05:51 Andrew: Yeah. Shows the severity of the injuries, which directly relates to the appropriate amount of damages. Um, and uh, and so yes, this this would be admissible. Um, the fact that uh the original videotape is not there uh is all you need under 1001d to introduce uh a derivative copy. Um, yeah, so B was Indeed The Best, no, answer, but the answer was yes, C, and you got it right. You

1:06:15 Thomas: You Have it No

1:06:22 Clip: You are correct the best kind of correct he's not even a lawyer he's kicking your ass

1:06:32 Thomas: All right, Andrew, hop in your time machine, tell us who is this week's big winner.

1:06:36 Andrew: Well, Thomas, this week's winner is Alex Davies on Twitter, who writes, "Thomas was right, C is correct. Relevant evidence is admissible if it 1. has a tendency to make a fact more or less probable, and 2. the fact is of consequence. Tried to bait me with the best evidence rule. Best evidence rule's almost always a false lead on MBE. Take that, MBE jackasses." Well, that is short, succinct, to the point, and good advice to future bar exam takers. So congratulations, Alex, on being this week's winner. Everyone give him follow over on Twitter. That is at A-L-E-X-V-D-A-V I-E S at Alex V Davies on Twitter, and congratulations again on being This Week's Winner.

1:07:16 Thomas: Thank you so much for listening everybody, and we will see you on Friday for a rapid response, who knows what we'll be talking about.

1:07:24 Andrew: It will not be what I thought we were talking about on Tuesday, that's for sure.

1:07:29 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:08:02 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra 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 Arguments 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.