OA592: NYT's 'The Daily' Botches SCOTUS Case Coverage

Transcript

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

0:01:16 Thomas: To Opening Arguments. This is episode 592 because of that bonus episode. Oh, I'm Thomas. That's Andrew Torrez, Esquire. How are doing?

0:01:20 Clip: I am fantastic, Thomas. I'm super excited. We have Andrew Seidel with us here today. And, you know, nothing gets my lawyer juices flowing like atheist Captain America.

0:01:36 Thomas: Gross. I didn't know you had those. It's time for another show. We'll do that later. Deeply excited too to have Andrew here. It is always a ton of fun even though the news is always bad. But that's the best that we're going to get. I think that's making the most of the situation. A quick announcement before we get going. We are due for another live Q&A. We're actually probably a little overdue for it.

0:01:39 Clip: Oh, yeah.

0:02:02 Clip: Hey, hey, hey.

0:02:05 Thomas: Well, you know, the end of the month with that bonus episode and everything got a little congested. So we pushed it a little bit. The Q&H, The Patreon Q&A we do every month is going to be May 10th. That is Tuesday, May 10 at 5 p.m. Pacific, 8 p.m. Eastern Time. Be there, be square, bring a cocktail, bring a beer, bring yourself water, tea, anything and join us on YouTube. If you sign up for our YouTube, if you kind of subscribe to our YouTube would be the proper nomenclature there, then it'll tell you. And also, I will make sure to remember to put out the notifications on Patreon, all all the social media. But the question thread will already be up as you're hearing this. So go to patreon.com/law. And if you are a patron or you want to make a pledge, you get to ask the questions and vote.

0:02:53 Thomas: Please vote on the questions you want here. You guys have been doing a great job of that lately. I love getting those votes so that I know which ones you want answered. Make sure to do that. And one more final reminder, that is Tuesday, May 10th at 5 p.m. Pacific, 8 p.m. Eastern. That said, I think we are now ready to administer the Andrew Seidel onto the wound that is separation of church and state.

0:03:18 Clip: Let's do it. Hello! Operator! Give me the number for 911!

0:03:21 Thomas: And we are welcoming back to the show for the umpteenth time, Andrew Seidel. How you doing? The best Andrew. No other Andrew even competes.

0:03:25 Seidel: I am.

0:03:31 Thomas: How you doin'?

0:03:32 Andrew: Oh, I'm

0:03:33 Seidel: Well, gentlemen, thank you so much for having me on again.

0:03:36 Andrew: Not saying anything for the rest of the show. That's, we're fine. It's all good.

0:03:39 Thomas: Oh, there's another Andrew. Sorry. Second best Andrew... Jeez, I didn't know he was on.

0:03:46 Seidel: Yeah,

0:03:47 Andrew: But at least I do the show in situations other than, you know, the collapse of the separation of church and state as we know it. So, right.

0:03:55 Thomas: Yeah.

0:03:55 Seidel: You just handle all the other collapses that are going on.

0:03:57 Andrew: Yeah. I'm not suggesting I don't cover worse stories but you know

0:04:01 Thomas: When's the last time either of you guys can remember a religious related case where it wasn't ruining everything?

0:04:03 Andrew: 2016

0:04:09 Seidel: Last the last decade's been pretty brutal. And it's been it's I think I'm going to come on the show in a couple months and talk about that more explicitly with with the new book I have coming out but uh yeah yeah very exciting, American Crusade, it's available for pre-order right now, but really, I mean the last really solid solid win that you can't can't say one way or another, uh, I think is is the Santa Fe v. Doe case, uh, in 2001, which struck down organized prayer at public high school football games, which is uh yeah a little little strange.

0:04:11 Thomas: Oh oh that's weird interesting so They've settled that issue then, okay, so we don't need to revisit that. So, anyway, What's today's case before

0:04:51 Andrew: So, yeah. Andrew, we have you on discussing last Monday oral arguments at the Supreme Court in Kennedy versus Bremerton School District. I have a lot of questions, but perhaps you could kind of give us a sketch of what happened and players who were involved, that sort of thing.

0:05:12 Thomas: We do that? Should we talk about your new job title?

0:05:16 Seidel: Oh, yes, of course. Yes, I am now, Andrew Seidel is now the Vice President of Strategic Communications at Americans United for Separation of Church and State. Big new gig, really excited about it. It's an awesome team at Americans United. I'm just doing phenomenal work. And if you listen to this oral argument or you actually go read the briefs that are written, you're going to see this is just a top-notch organization I'm really proud to be a part of.

0:05:44 Thomas: That is so cool.

0:05:45 Andrew: This is an Americans United case.

0:05:48 Seidel: It is. So the school district in this case actually asked Americans United to step in and represent it throughout the litigation because of Americans United expertise in this arena. And this case is crazy. This is a case about a coach that used his power and his position at a public school to impose his personal religion on other people's children. That's the basic thing that we are talking about. So let's dig a little bit below that. So Joe Kennedy was a public high school football coach in Bremerton, Washington. And he repeatedly delivered prayers to players at the 50-yard line immediately following games. You know, you'd these prayer circles that all the all the players would join and you'd give these little, you motivational talks after the game and they need to have a prayer. And we know, we know that students felt pressured to join. They felt that they had to pray to play. I mean, they really did. Like, it's clear. It's in the record.

0:05:53 Thomas: Wow. Oh, yeah.

0:06:47 Andrew: This is the first case I can, you know and I read a lot of cert petitions, oppositions to cert as part of my job, you know as part OFA job But this is the first one that I can recall with multiple pictures in an opposition to cert, because the if you are just following the mainstream press coverage of this case, even in, you know, left of center circles.

0:07:04 Seidel: Yeah.

0:07:15 Thomas: Hmm.

0:07:15 Andrew: Well, here, let's in fact, yeah, Well, we'll get there. But, but let me quote from the opposition to cert itself. It says, "The petition, the cert petition, which was granted, insists that this case is about Kennedy's," quote, "brief, quiet prayer by himself, except for prayer." And again, I am reading from a another lawyer, not me, not Andrew Seidel, who wrote this, "except for prayer. Every word of that description is wrong." And they then go through, and in the opposition to cert are multiple color photographs of 75 people at the 50 yard line, where you have to have a little red arrow to point out where the coach is, because there are so many people there. Multiple um pictures that

0:07:17 Thomas: For example.

0:08:03 Thomas: Okay.

0:08:04 Andrew: You know demonstrate this is not a coach off by himself

0:08:07 Thomas: As an avid The Daily listener myself, even though I have a love-hate relationship with it, let me present what

0:08:13 Seidel: It's about to go one way or the other there, I think, buddy.

0:08:15 Thomas: A Lot of people are probably thinking, having listened to The Daily. I mean, it is the largest podcast in, I don't know, all of podcasts. So I'm sure a lot of our listeners have heard it. And in that puff piece with this coach, they suggested that he was just out there praying by himself. And what happened for those pictures was once, you know, he went to the media and like, you know, talked about this case and what was happening or whatever, then a bunch of people joined him at midfield. And I could almost imagine like, honestly, you know, steel manning this whole thing. I could imagine if, if the case, if the facts were, this guy was just praying silently and then like the administration told him like, well, kids can't be involved. And so he said, all right, kids, you can't be involved. And then somehow people got wind of that. A bunch of conservative assholes would go to the games and join him in the prayer in midfield.

0:09:09 Thomas: I can actually imagine that being more or less the case. Is that not accurately? Is that now what happened?

0:09:06 Andrew: Text god's not dead

0:09:16 Seidel: Let's back up for just a second, because I, I think, to help all the listeners here, it really is worth quoting one of the Ninth Circuit's concurring opinions from judge Milan Smith, who, uh, this, is a W Bush appointee. He was confirmed 93 to 0. And in, in his concurring opinion at the Ninth Circuit, he wrote about the siren song of a deceitful narrative of this case spun by counsel for the appellant, that's the coach, to the effect that Joseph Kennedy, a Bremerton High School football coach, was disciplined for holding silent private prayers. That narrative is false. Now, I mean, Andrew, I don't know about you, but if a federal judge said That I had spun a deceitful narrative, I would like take a year off. I would Do some serious interest, I'd question my life choices, you know, but

0:10:00 Thomas: Mean

0:10:06 Andrew: Yeah I

0:10:12 Thomas: Unless it was that judge from Florida who struck down the airplane Thing, other than That, well

0:10:15 Andrew: Right. But But, yeah, when, when a federal judge says you are engaging in a deceitful narrative, that, that ought to give you pause. But instead, um, that has led the, uh, Liberty Institute, uh, to, double down, uh, both in terms of the, the message that's getting out to wider, the community, and also in pleadings at the Supreme Supreme Court level.

0:10:36 Andrew: And this was something I want to give you credit for this, Andrew, because it was not something I had noticed in free exercise cases up until now. But you flagged this the last time you were on. That there is a sort of usually a subtle rewriting of the facts that goes on in these kinds of cases, you know, to try and make it, sort of more palatable to the result. But this appears to be just, wholesale you rewriting of everything that happened.

0:10:36 Seidel: Yeah yes it Really is, and and I do detail the that more creative rewriting in in the new book that's coming out, but in this case it is just, it's so remarkable, and and the more remarkable thing is that after essentially getting just hammered by the Ninth Circuit, just judges, they turn around and appeal to the Supreme Court, and they and they double down, and like that says so much about their view of this Supreme Court, it and You know and I mean I mean And like to bring it back to the Daily, like, I- I do listen to the Daily and I've kind kind of trusted it as a source. But this was a remarkably bad episode just from this standpoint, because you have the Ninth Circuit warning about the coach's lawyers spinning this deceitful narrative. And then the Daily only features the coach. There's no student, no school representative, no parent. There is no other voices represented in this 30-minute episode. I cannot

0:11:29 Thomas: Yeah, I Mean they're not wrong about that yeah

0:11:29 Andrew: Yeah.

0:11:50 Thomas: And

0:11:59 Andrew: Did they not reach

0:12:00 Seidel: Fathom. Them we talked to the new york times uh during the process of this but not for the podcast and I I honestly cannot fathom a federal court calling out a party as deceitful and then only featuring that voice in a podcast that is meant to be a balanced explanation.

0:12:00 Andrew: Out to AU at all? Wow.

0:12:17 Thomas: The podcast has 9 000 times the amount of eyeballs or ear balls that a uh that an article has sorry

0:12:18 Seidel: You yeah no I mean but it's so disappointing and it it really drags down the reputation

0:12:25 Thomas: Yeah so it's even more important yeah yeah

0:12:28 Andrew: So why don't we sort of hit the low points here, right? Like what, what factually is, is wrong about that dominant narrative? We've, you know, we've already hit a little bit on, you know 75 kids crowded around the 50 yard line but um yeah let us know

0:12:37 Seidel: Yeah, sure. Well, I'm going to stick with the daily just for a little bit, because I do think it's important. And I'm sure a lot of your listeners Listen to it also. But you know, so we begin by hearing about how the coach was fired for praying, but he wasn't. The school district actually at every stage of this proceeding tried to accommodate his prayers. They wanted to give him an opportunity to pray in a way, like, we'll give you time and we'll give you space for genuine personal prayer while on the job. But every time he refused, and he demanded to be able to pray at the center of the field out loud with his students. And then he publicized these demands so that these prayers turned into, you know, a circus. And one, there was a literal, what the Ninth Circuit called a stampede onto the field where students in the band are being knocked to the ground and the media is rushing the field and state legislators are rushing the field to join the prayer circle.

0:12:45 Andrew: At

0:12:47 Thomas: Wow

0:13:33 Seidel: So, of course, the district put him on paid leave because he's not at this point listening to them and putting students in danger while still continuing to offer him religious accommodations for his personal prayer. While he was on leave, his annual contract expired, which is what happens with annual contracts. And instead of reapplying, he sued and then he moved to Florida and and in the daily it's the daily's drive it's a really good question so the daily is driving around bremerton with the coach just like he lives there no mention that he's been in florida for two years that he is a registered voter in florid that that's where his house is

0:13:58 Thomas: Wow. So what the hell is this lawsuit?

0:14:10 Thomas: Yeah. They never mentioned that. It

0:14:16 Andrew: Oral argument right this Is one of the questions that I wanted to ask you about, the the ridiculous procedural history of this case, right, which is, uh, essentially, uh, Kennedy losing at at every level on multiple avenues since 2016, was spun by the Liberty Institute as "this poor man has waited six years to get his job back," right? That's that's what council said during oral argument he doesn't live in the school district so there is no chance right the relief of give him his job back is not not sensible you know that is that is nonsense right wow

0:14:18 Seidel: Yeah. Yeah. Yep yeah I mean Like, like, it's a five, it's, less as a wrap up, five thousand dollars a year, I don't remember the exact number on the contract, but give or take About five thousand hours a year, and he's gonna to Florida, sell his house, buy a new house, register to vote in Florida, he is a Floridian, and then if the supreme if the super yeah that was just, I mean You know, and then he has sworn to the Supreme Court he's going to move back if they, if they say he can.

0:14:53 Andrew: Hmm Yeah.

0:15:08 Thomas: Sounds like it. Yeah.

0:15:12 Andrew: Apologies to our florida listeners yeah

0:15:20 Thomas: Wow.

0:15:20 Seidel: That is that's a little hard for me to swallow especially given the deceitful narrative we've heard the whole time

0:15:23 Thomas: Yeah, I too would move across the country for a $5,000 a year job. That's definitely life-changing money.

0:15:28 Seidel: Yeah I

0:15:33 Andrew: So what else, kind what, of stuck in your craw, Andrew?

0:15:36 Seidel: Another, Big thing is coercion and pressure on these students. And, you know, there's this exchange, uh, in the podcast where basically they're asking the coach, you know, did kids feel pressure to play? And the daily says no. Well, you know, they note that he had the coach had a ready answer, and they say, go find someone who felt coerced. And Andrew, you just pointed out, right, this was six years ago. Like, even the youngest players on that team are halfway through college now. You know, like, of course, they can't find somebody right now. But but the frustrating thing about that is that they don't have to, because the coach doing the coercion, insisting that it didn't happen, is kind of beside the point, especially when you have a factual record in the case showing that there are students and families who felt coerced. They felt they had to pray to play, it.

0:15:36 Andrew: Mm-hmm I

0:16:09 Thomas: Yeah oh I know That reminded me very much of the classic, like the sexual harassment cases where it's like, you know, the the asshole doing the sexual harassing is like, Brenda doesn't care right, you're fine, you don't mind these jokes, and then of course, because of all the pressure involved, they have to be like, yeah, no, it's fine, cool, great jokes, I love it.

0:16:30 Andrew: Yeah it it My son played on travel baseball teams, right, and the the playing time is a black box, the right? Coach gets to decide, right, how to make up the lineup. And the, you know, Alex and I had a long discussion, right, about yes, coach, right, and that's the attitude you need to have in order to play on a competitive team. And so the idea that you would be like, well, this is a thing that is clearly the most important thing in the coach's life, um, I don't feel any pressure at all as a 14 year old to, that that just defies logic, it is it's insane you

0:16:37 Thomas: Yeah

0:17:13 Seidel: Absolutely does and and look there's even an amicus briefs by child psychologists on the school district side explaining the coercive nature of that relationship on students of this age

0:17:18 Andrew: Mean an amicus brief but

0:17:26 Thomas: I Was hoping your new position would have an official, uh, pronunciation change like maybe that was an ffrf position

0:17:30 Seidel: No it's still a dead language there's we have another brief by footballers who were explaining this uh we have a a community amicus brief that included a former player, and the player wanted to remain anonymous because to this day he doesn't feel like he can out himself and this is somebody who joined the prayer. I mean, that is coercion. That is pressure. Idea that you'd ask the person responsible for this and just kind of go with it is nuts. There's the idea That he's a really popular figure in the community, this coach that the community almost uniformly backs him, I believe was the way they phrased it. Again, he is in Florida.

0:17:31 Thomas: Yeah really

0:17:38 Andrew: Yeah sure yeah

0:18:11 Seidel: But even if he weren't in Florida, Like if at, for instance, at oral argument on Monday, the only community members at the court were there supporting the school district and they were all members of the local Bremerton clergy. Yes. Yes. They're all there supportingthe students and supporting the schoo,l not the coach.

0:18:24 Andrew: Wow yeah

0:18:24 Thomas: Wow this what Kind of dog shit journalism was this episode. Can we get a hashtag trend? I'm seriously, this is, we got to get them to issue a correction or something. You know, this reminds me, early on in the Daily, they did some similarly terrible puff piece about a coal miner or something, and and just like painted the most ridiculous picture of coal mining and all this stuff, and they got enough backlash that they actually, like, I think they said something about it. Maybe we can make a similar thing happen here, because this is ridiculous.

0:18:33 Andrew: Yeah.

0:19:00 Andrew: Yeah. I want to ask this question, and and we haven't really sort of broken down the legal arguments and and where this is going yet, but was a lot made, in a way that surprised me, at oral arguments regarding whether immediately after the game is the coach on his own time, or sort of still on school time, right? And under any sensible, uh, analysis of, uh, the establishment clause, that that shouldn't matter, right, what matters is the forum, right? It is at the school, on the 50 yard line of a football game hosted by the school, and so when the question is, does this appear on its face to be an obvious endorsement by the School itself, like, I, 200 years of jurisprudence seem to cry out yes to, was that right, trying to figure out the significance of being on on your own time. And then I have a follow-up question. So why?

0:19:00 Thomas: Hmm.

0:19:20 Thomas: Is

0:19:56 Seidel: Coach

0:19:57 Andrew: First question, what could that possibly matter to the emerging whatever kind of jurisprudence that the right is going to cobble together out of this plus Masterpiece Cakeshop? I have some thoughts, but in their minds would it matter whether it is school time or private time?

0:20:17 Seidel: The argument that the other side is making other than just twisting and torturing the facts of This case, uh, beyond all recognition, is, is very, very bizarre. It's, it's so bizarre, it's honestly to follow logically. It goes something like, and there's a really hilarious moment, if people go listen to the oral argument, where I found it hilarious, where Thomas and Paul Clement, the lawyer for the coach, are kind of talking at cross purposes, and they get stuck in this weird circular logic, and they think they're saying the the same thing to each other, but they're really not.

Argument anyway is basically like, look, it's a prayer, and that means it's religious, and therefore it can't be that he's doing it in his official capacity as, as a government employee, because he couldn't do it in his official capacity as a government employee. Like, And that's really what it is. And I think, I think that's part of kind of going to this, this, when did it happen? It's, they're trying to get at the question of was he acting in his oficial capacity, is essentially what they're, what getting at. And, and really like our argument in the case, AU is representing the school district here. It's a twofold argument. We're saying, and it's limited argument. It is a very sort of circumscribed argument.

0:20:22 Andrew: Yeah. Yeah.

0:21:02 Andrew: The yeah.

0:21:04 Thomas: Oh.

0:21:28 Seidel: Deliberately, yeah, And strategically so, exactly. So this first, this is government speech. He is acting in his official capacity as a coach. He's on the field as a coach. He has access to these kids because he's a coach. He is at the 50-yard line giving the traditional post-game speech as a coach, and then adding the prayer on, unconstitutionally. And so there's this 2005 opinion, Garcetti, and, I mean, this is written by Kennedy and joined by Roberts and Scalia and Thomas and Alito, okay? I mean, this is like a lot of the same people. And basically it says, when an agent of the state is acting in their official capacity, they don't have a First Amendment right to say anything they want. And it actually makes sense, right? If you're acting as a government, as the government, the First Amendment protections don't apply, because the First Amendment limits the government. It kind of makes sense. So the

0:21:28 Andrew: Because this is what we have to do. Yeah, yep.

0:22:18 Thomas: Duh

0:22:18 Andrew: Yep.

0:22:18 Seidel: Way that Justice Kennedy put it, I think it was when public employees make statements pursuant to their official duties, they're not speaking as citizens for First Amendment purposes. Pretty basic. Yeah. Be open and shut right there. I that is very, very clear, I think. There are other cases. There's another case called Pickering. And this is sort of the second prong, where if you're not sure that it's government speech, or maybe if it's not, if it is a government employee who is maybe speaking as a private citizen, then you do the Pickering balance. Balance yeah

0:22:28 Thomas: Yeah should be obvious

0:22:48 Andrew: And Pickering is a is a 1960s case, right? Like that is.

0:22:51 Seidel: It's I think it's 1968 I believe and Pickering was a teacher and he wrote a letter to the editor of a local paper, and I'm pretty sure it was critical of funding athletics over academics and so so the school board fired him well he was fired and the supreme court decides eight to one that his first amendment rights rights were violated. And Thurgood Marshall writes the opinion and he says, we have to balance the interests of the teacher as a citizen with the competing interests of, of the state as an employer here. And so you, you kind of balance these two things. It's not saying you can't regulate that speech at all. It says, you can, know, not be able to, it depends. And So here there's a couple things in that balance, right? Given the time, place, and manner of Kennedy's prayers,

0:22:51 Andrew: Yeah. Yeah, yeah. Mm

0:23:02 Thomas: So he was fired, oh yeah, yeah the

0:23:36 Seidel: The district is entitled to regulate them because they're entitled to prevent the disruption and maintain control over school events. They're to permitted safeguard students' rights. Remember, students are getting knocked over at this point, and they're allowed to avoid constitutional violations. And on top of all of that, remember, the school district was not saying that Kennedy couldn't pray, just that he needed to do it in a way that was not disruptive or coercive, and they tried to work with him to do that at every step of the way. Yeah.

0:23:37 Andrew: Hmm.

0:24:07 Thomas: Christian persecution narrative is so strong among these these people. Every single comment you see anywhere is, oh, this man should be allowed to pray. You can't stop a man from praying. Yeah. Okay. God, we have such an uphill battle in this because they're so primed to see things in these terms and to believe this false narrative that this guy is spinning.

0:24:17 Seidel: Yep

0:24:28 Andrew: Well, I went on scathing last week right after this came out and Noah asked me, OK, well, you know, what's next after this? And I said, this seems indistinguishable on the facts, the facts as being argued here. So leave aside the deceptiveness. But if this ruling, if the Supreme Court decides in favor of Kennedy, I don't see how a school could stop a teacher, say, an eighth grade teacher that decides to first pray and then hold Bible study before homeroom in the morning. Right. Bell rings at eight o'clock and I absolutely stopped talking about Jesus. And, you know, like some kids get to homeroom a little early and if they just want to voluntarily join me, that's fantastic. I mean, something that is

0:25:10 Thomas: And it definitely doesn't impact any grades or anything or any favoritism

0:25:19 Andrew: Yeah. No. Who would who would think that? Just ask any of my students. Yeah. And that's

0:25:20 Thomas: Yeah ask the kids yeah can

0:25:23 Seidel: Mean but this is this that's the crucial thing that you're hitting on andrew

0:25:28 Andrew: It. It's an inconceivable position. Right. The idea that a public school teacher could hold Bible study before homeroom. But I don't don'T see any way in which that that would not be permissible. Right. Am I wrong on is that? There a factual line you could draw?

0:25:31 Seidel: It is well I'm gonna say it like this because this, is crucial, and I don't believe I've said it yet, and I should say it basically every other sentence, this case does threaten to undermine, undermine religious liberty. It really does, but it threatens to undermine the religious freedom of every single public school student in the country. And their family, right?

0:26:02 Seidel: That, that is what hangs in the balance, the religious kingdom of every, every single kid in a public school.

0:26:00 Andrew: Yeah,

0:26:02 Thomas: Did Anybody in these oral arguments, can one of the same justices, can anybody on the AU side, on the schools, like, can somebody say, hey, would it be cool, conservatives in the court, for a Muslim to, uh, and do Quran reading, like, can they just cast it in those terms so they see how ridiculous this is. It's the only way they'll see because they have this complete blind spot for their own religion. And if you sub in any religion that they see as scary, I think they'll quickly see the point. Did that happen ever?

0:26:34 Seidel: It's real, it actually happened in, in real life. You there was a Buddhist coach on, on the staff and in the the Coach Kennedy's EEOC complaint he said, you know, there was a Buddhist prayer given by another coach, and it was this overt public demonstrative religious conduct, and um, basically saying that the school district was favoring Buddhism over Christianity, but then they get the coach to testify and you find out, oh, actually no, the Buddha's coach just stood there with his eyes closed and that was it. And Coach Kennedy admitted that, and of course the school District is fine with that that's what they're trying to say Kennedy ought to be doing, right?

0:26:56 Thomas: Hmm. Wow. Yeah.

0:27:12 Seidel: You can pray in a way that is not pressuring students to join you. And that would have been fine.

0:27:19 Thomas: The cool thing about prayer is because it's an imaginary thing you're doing in your head, you can do it. I could do it right now. And during the show, you wouldn't even know it.

0:27:24 Andrew: Well, Andrew, I mean, you brought out really a third issue there. Because the two interests that you staked out previously are the of students to be free from coercion the right of students, administrators to sort of maintain order and not get trampled and all of that. But I think you just articulated a really, really strong point. It's something that shows up in the Ninth Circuit opinion. And that is the right of the school district to disassociate itself right from the activities of one of the members of its staff. And To say, like, hey, look, we're way more inclusive than this. We don't endorse it. And again, it's why I love Thomas's hypothetical. It is super easy to understand, right? Like it would, this case would go nowhere if it were Muslim prayer rugs were being dragged out at the 50 yard line. And the school district said, hey, we want to indicate that this is not a madrasa. We are not a Muslim school. We love Muslim.

We know we have nothing against them, but we want to disassociate ourself. We want to show, as is required by Lemon versus Kurtzman, right, that we are not endorsing Islam, we're right? Neutral towards Islam, which is what we have understood since time immemorial to be the job requirement of us acting as a school as a

0:28:03 Seidel: Yes.

0:28:49 Andrew: School District, yeah. Right.

0:28:49 Thomas: A public school. It's right there

0:28:52 Andrew: And And and so, it two questions on that. Number one, we we can talk about how Lemon was treated during oral argument, which was not, not good. Uh, number one, is it, is is that still a cognizable interest in Supreme Court law anymore, you know, to be able to say as a public institution, we want to maintain neutrality, public neutrality, not endorse, neither favor nor inhibit religion? And number two, if so, how could the school district do that in this case?

0:28:52 Thomas: In the name. I

0:29:24 Seidel: I mean, it's a really great question. Do you want to play the clip about slicing lemon right here?

0:29:28 Thomas: Would love to play a clip about slicing lemon which

0:29:31 Clip: A stubborn fruit, and I don't think just pushing a pencil through it has done the trick. Mean, you really have to slice it in half, and make look have been individual opinions, but we haven't applied it in the cases.

0:29:40 Seidel: So let's, let's stop there.

0:29:43 Clip: I take it as

0:29:43 Thomas: Oh, that was quick. It took him a few seconds.

0:29:44 Seidel: Yeah. I mean, it's, it'S a quick one. Yeah, it was it's a short one. I mean, so that's Paul Clement, the coach's lawyer talking with Justice Kavanaugh about the Levin test, which is what Andrew was just talking about. The Levin test is just is so wrongly maligned. And And it

0:30:02 Thomas: I thought you said it was dead after the last time we had you on here, though. Isn't Lemon dead?

0:30:07 Seidel: It was certainly put on a shelf.

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0:33:19 Seidel: Well, let's do it. Let's do it. Let's do Lemon test, because it's, so it's, this is really is not a test that was created out of whole cloth in 1971. When the case was decided, the court looked back in that case in Lemon versus Kurtzman on all the cases that it had decided about the government using government power and resources to promote or advance or inculcate or impose one particular religion over others or religion generally over non-religion. And after that survey, it formulated this simple three-part test to determine whether a government action crosses a constitutional line, right? Does the government action have a secular purpose, number one, have a principle or primary effect that neither advances or inhibits religion, that's two, or does it foster excessive entanglement between the government and religion?

0:34:05 Seidel: And if that action fails any one of those three prongs, it fails the Lemon test, and it's struck down. That is a good test. It's not that the test is bad. It is that the court and the makeup of the court began to change almost immediately. Remember, this is synthesized from decades of precedent. Then, six months later, the court began to look a lot different. Two of the justices who crafted much of the precedent that Lemon was was built on were gone. Lemon was decided in June and then just before the summer recesses. And then by December, Nixon had actually nominated two justices who would be confirmed by January. Lewis Powell, who replaced Hugo Black, who was a strong supporter of state church separation. Powell penned a memo that some believe basically served as the master plan for the modern conservative movement and all about business asserting its power. And then really William William Rehnquist, who everybody knows.

0:34:57 Seidel: And then in 1986, you have Reagan adding Justice Scalia and making Rehnqist chief justice. We start to see Lemon getting nipped and stabbed and bit at every single opportunity. But it's a strong precedent, right? It's older than Roe versus Wade. It was an eight to one decision and it was built on all of the court's earlier cases. The problem is that the court has been unwilling to apply the legal principle, either because of some misguided fear of popular backlash, or because it wanted a different outcome, right? To avoid the required outcome, they started attacking the test. And this is, to me, the most crucial thing. And Andrew, I'd love to get your take on this too. When pressed, nobody has anything to offer in place of Lemon. But Lemon really should be our test.

0:34:43 Andrew: Mm-hmm right

0:35:44 Seidel: But can't be when justices are looking to reverse engineer their decision. And Thomas, the last time we talked about it, I believe, was the Bladensburg Cross opinion. And you'll see if you read those opinions, there's a bunch in that case. Nobody can agree on the replacement test for Lemon. And then shortly after that case, Thomas and Gorsuch, who hate Lemon, they wrote specifically in the Public Resource case, Georgia v. Public Resource, in 2020, that the court has not overruled Lemon v. Kurtzman, right?

0:35:59 Thomas: Yeah.

0:36:12 Thomas: Yeah. Play... The test is just Christian, fine. Everything else, not. Fine. That's basically...

0:36:12 Seidel: Yeah damn it that's my new book thomas yeah

0:36:18 Andrew: So So let me unpack a lot of that, because I, I'm in agreement, I think the situation is dire. I will point out a thing that, and Andrew wasn't at AU when this brief got written, uh, but the opposition to cert, right, and the opposition brief after cert was, was granted, AU's brief does not cite Lemon versus Kurtzman right, and strategically, So, right, the decision that was made there was, yes, if I Shepherdize this, it shows up as green with a little yellow flag, right, it shows up as good law, but I know that there are at least five justices that don't care.

0:36:39 Thomas: Interesting.

0:36:50 Thomas: Yeah. Which one's more dead, Lemon or Rowe? Look, if you had to pick, neither are struck down officially, right? The era of the court is stuff that's technically still there but isn't at all, right.

0:37:01 Seidel: Saddest question ever no

0:36:57 Andrew: All right. All Right, but Yeah, But Yeah, And I want to take you back to, again, 2016, right? I don't want to take back to 1973, to 1968, to like the, you know, the heyday of of the Warren Court or anything like that. I want to to take you back to like three decades of conservative assent on the Supreme Court. Nevertheless, in 2016, the law was, would I describe, reasonably clear. And one, right, of the virtues, when you decouple from the sort of emotional and longstanding issues regarding religion, like one of the things you, want we've talked about this on the show since episode one, is you want some kind of predictability, right? Like, I'm a lawyer, people hire me, and they say, hey, can I do X, right? And so in 2016, religious cases fell into two categories.

0:38:00 Andrew: The first were claims about the free exercise clause of the First Amendment, right, and those, those claims were governed by Employment Division versus Smith, which basically said if the law is neutral on its face, tough noogies, it, right, can incidentally burden religion, so long as the primary purpose is not to burden religion, so long as it is neutral in its face, you got to obey the law. Amish people, you have to pay your taxes, right? Jehovah's Witnesses, you have to pay your taxes. That was the thought process, again, Scully opinion, and more difficult in application just because of, you know, it's a three prong test. But, but on the establishment clause questions, it was the Lemon test, right? And you applied those three prongs. Were there some, you know, liberal jurists and liberal professors who sort of quibbled with the third prong and said, well, you don't know, excessive entanglement?

0:38:53 Andrew: And it's kind of hard to tell what that means. There was a little bit of that, right? Like, we should be honest about that, that there was criticism from more than just the right. But by and large, six years ago, the law was stable. We knew what it meant. You took your claim. You immediately classified it as, okay, is this free exercise? Am I claiming I want a special exception? Or is this establishment clause? I dealing Am with the endorsement, promotion, active engagement between government, between church and state, In right? The past six years, everything I just said is worthless. Right. We have no idea. You have with Trinity Lutheran. You Right. Have crafted what look like free exercise claims that can't be called free exercise claims because Employment Division v.

0:39:41 Andrew: Smith is still good law, even though the same people who hate Lemon hate Employment Division versus Smith, um, you have like this case, this case is not described as, as an establishment clause case, it's an establishment cause case, I, it's just, I, I don't know, other than, you know, Thomas, your rule of, if you're Christian, you're gonna win, I, I, don't know, how you can give advice to your clients, right?

0:40:03 Thomas: Yeah. Wake me up when that rule doesn't fit. Like when there's an exception on the Supreme Court level to that rule.

0:40:11 Andrew: Oh,

0:40:10 Seidel: I agree a hundred percent, though, it fits everything, and it fits this case, and actually, I'm gonna even back, back up more, Andrew, because Thomas is going to love this. No, no. Actually, I will not do that. Look, I'm a lawyer, and I love nothing more than to talk about legal tests and levels of judicial scrutiny and esoteric procedure.

0:40:21 Andrew: Say it say it slower andrew

0:40:32 Seidel: But it obscures

0:40:33 Thomas: Save this for after the show, guys. Guys.

0:40:35 Seidel: The realities of this case in a way that harms the Constitution and harms the rule of law. So important because the undisputed facts here are that students felt pressured by an agent of the state to pray. That is the reality. Now, the court may adopt some alternative fact. The justices may buy into the deceitful narrative that the other side's spinning, but the actual facts show that this is a violation of any of the establishment clause tests out there. Lemon, endorsement, coercion test, you name it, it meets the requirements for all of those because it was so bad. And above and beyond on that. It's government speech, not the speech of private citizens. In no world, legal or real, should this coach win this case?

0:40:51 Andrew: Yeah I'm pretty pessimistic about how this is going to go, uh, largely thanks to you. Uh, we, we may recall that I thought, uh, Lock versus Davy, uh, was controlling and the Trinity Lutheran was going to go the other way, um, I was only wrong with that being a seven to two decision.

0:41:40 Thomas: Yeah, because the liberals aren't even good on this on the court.

0:41:42 Andrew: Yeah. I think this is going to be an eight one. I think we're going to get a, Sotomayor dissent, um, because this will be, this will be Justice Briar's, you know, parting gift to us before he, uh, steps down from the bench. Hopefully, Hopefully, Justice Jackson will a bit more about church state separation issues. I'm just, I'm negatron the whole way on this. I think it's going to be eight one. I don't think there's going to be a remand back to the Ninth Circuit. I don't think there's going to be any sort of lesser, potential for a narrow ruling. Uh you want to talk me down off the ledge or what do you think andrew okay

0:41:56 Thomas: Can she smack some sense into this court? God.

0:42:15 Seidel: I think there is more of a possibility for a remand than I thought going into oral argument. Richard Katsky, who argued the case for AU and for the school district, I thought did a phenomenal job. If you noticed, the conservative justices... No, no, no, I mean, if you, but if you notice, the conservative justices in the argument really came to the rescue of Paul Clement quite a few times and had these long, like, 20 minutes soliloquies.

0:42:27 Andrew: Nothing against your employer right

0:42:36 Thomas: So what would a remand do for the non-lawyer? Keep in mind, not everybody is as good at the law as the three of us equally are. What would...

0:42:38 Seidel: With him basically they would kick they'd keep the court would kick it back down and say, hey, we need to, you need to do some fact finding on coercion. It is extraordinarily rare for a court to focus this much on the facts as they, I mean, there were so many exchanges about the facts on oral argument, uh, during oral argument, and that is just really remarkably rare for a Supreme Court case, and it shouldn't happen

0:42:45 Thomas: Yeah,

0:43:04 Andrew: Yeah

0:43:03 Thomas: Because by the time you get to the Supreme Court, isn't the factual record that should all be kind of, you know, that's all set and you're trying to decide broader legal principles technical

0:43:08 Andrew: Correct yeah but

0:43:04 Seidel: Yeah yeah yeah and in and in a normal world Yes, and in our normal world, that would be a very bad sign for Coach Kennedy, because the truth and the facts and the law, for that matter, are on the side of the students and on the school district, uh, so a remand, I think, would be a would win of a kind. I

0:43:24 Andrew: Right A remand would mean the Supreme Court saying the, The Ninth Circuit, when they denied Kennedy's coach, Kennedy's request to be reinstated, applied the wrong legal test because they were looking at Lemon. Lemon is not appropriate, not good law, not how we decide this. And maybe, you know, maybe it's not explicitly overruled. Maybe it's just strongly disfavored. And the appropriate test is Masterpiece Cake Shop. Are you demonstrating hostility to religion? So we want to remand it back to the Ninth Circuit to apply the test in Masterpiece Cake Shop, which is now going forward, going to be the law of how we resolve these cases. That, that's how I envision a remand might come about.

0:44:11 Thomas: Question, why do they remand it to the Ninth Circuit to apply a thing that they can just apply now?

0:44:13 Andrew: So So the Supreme, Supreme Court would remand to the Ninth Circuit to say, you applied the wrong legal test to get up here. Go back, take the facts and apply the correct legal test. And then it would be up to the Ninth Circuit to say either the record adequately allows us to answer this, or we have to in turn remand it back down to the trial court to develop more facts. But the Supreme Court is going to let the Ninth Circuit make that decision for itself, itself.

0:44:42 Thomas: The Ninth Circle just do the, the, the old office from the office where they like re-crunch the numbers, and like it's an Excel spreadsheet, there's no re-cunch and youre like push the re- crunch button can they just do that I

0:44:48 Seidel: Was

0:44:51 Andrew: They could, but So to answer your question, right, if the Supreme Court thinks that it does not matter, that we right? Can just apply the test and we don't have to ask another court to do that, then they will do that. That's my pessimistic view, that instead right, of a remand, the Supreme Court will just say on the record before us, it's clear that there was open and hostility towards Coach Kennedy we therefore reverse and remand all the way back down to the trial court with instructions to vacate this opinion and proceed pursuant to that but right uh they could say Ninth Circuit you figure this out you applied the wrong law the right law is Masterpiece Cake Shop now go go find out right.

0:45:31 Seidel: They can remand it for a bunch of different reasons. Andrew is taking the Negatron.

0:45:37 Seidel: They could remand it for fact-finding. They could reman it, you know, we need to know more about whether there was coercion. We want to know mehr about whether the school was only looking at endorsement any of the number of threads that they pulled during oral argument that were factual they could remand for they could do it in the way that Andrew's saying which would not be great but there are there are other options available to the court too um and I I just I have such a hard time that they're gonna buy in to this much of a deceitful narrative right I mean the facts, the Constitution, decades of precedent are on the side of the school district. If there's any justice, and I understand that that is what courts are in the business of meting out, supposedly, the school district will win, and the court will protect religious freedom of public school students. But yeah,

0:46:23 Thomas: I got to ask this question that I think is relevant to this as a listener of The Daily once again, because you get all the way through that. Sorry, I'm not going to curse because I don't want to edit myself. I have to do the work of bleeping stuff if we curse. That's an extra duty that I have do. You get all way through that pile of crap episode.

And there's a part where Adam Liptack, the reporter for The New York Times who covers the court is like so yeah they've set up this question and you know can he pray on his own oh and also um you know he did do a bunch of prayers in the locker room and he led them in prayer there nobody agreed everybody acknowledges that's wrong and you know whatever but was this hypothetical prayer to himself wrong and I'm sitting there thinking and maybe you guys can explain this one to me he did what he did a prayer in the locker room as well isn't that already grounds if they all agree that's wrong that's already grounds that to it was fine to not renew his contract let alone the idea that they had he had a constitutional right for them to renew his contractor something forget all that how is that not just an instant this is over okay yeah there might be this other bullshit question about whether or not you prayed alone on the fifth whatever but like you led kids in prayer in the locker room so it's it's already fine by that we can't reverse your hiring decision and and your firing decision, if you had some other adequate grounds that we're already acknowledging, was fine, right?

0:47:41 Seidel: I think you've got to play the Alito clip here. Play this by saying we're jumping in an Alito in the middle of giving a hypo here. But but if you can play that I I this answers your question I think

0:47:43 Thomas: Okay.

0:47:53 Thomas: Can't wait. I'm going to be fully satisfied.

0:47:58 Clip: Give me your analysis of the following set of facts. Forget about all of the complicated facts in this case. A football game... ...with

0:48:08 Seidel: Stop it right there okay stop right

0:48:09 Thomas: Yeah.

0:48:08 Andrew: This video's out of context they've spliced up my words sorry that's a that's a Law'd Awful Movies callback

0:48:16 Thomas: I think I have my new answer to every T3B question, Andrew. It's just, okay, hold on. Forget about all the complicated facts of this real property question. This guy lives in a house. The end. That's how I can do the law. For the real property sure

0:48:21 Seidel: No I

0:48:31 Andrew: Hi

0:48:34 Seidel: Mean But this, this is, this was, it was remarkable because this continually came back in the oral argument time and time again in different ways where the coach's lawyer was just trying to twist the facts and change the facts to fit the narrative that they were trying to sell, not the reality. And I mean it was really alarming and uh, do you want to play the the Sotomayor clip?

0:48:57 Thomas: All.

0:48:57 Seidel: I'll, it's set it up a little bit. I mean, this clip is really interesting because it kind of gets at what, what you were getting at, Thomas, with, uh, the idea of a Muslim coach going out there and praying. But it also really is interesting because you can see the other side again, trying to sell their narrative by altering her hypos and her reaction to that is pretty fantastic.

0:49:17 Clip: If it's not part of his duties to set the example the school wants, why can't the school fire a coach who decides to put a Nazi swastika on their arm and go to the middle of the field and pray? If someone comes up and says, that's part of my religion, could the school say no to them? So, Justice Sotomayor, I think there were maybe three different hypotheticals there, and I'm going to try to deal with them as best I can. If somebody wants to have sort of a Nazi emblem, but it's not religious, but if it's not religious, I assume it's religious. I'm happy to assume it's religious. If it's religious, that might be if it's claimed to be religious that might be one of the rare suppose

0:50:06 Seidel: Right? I mean, so you can stop there. Yeah. Like, I mean, you can see what's happening. It's pushing back against the reality in the hypotheticals. And to me, that was just such an interesting moment, because, you know, I don't want to talk about the content of his answer there, but of the overall argument that they are trying to make, which is just forget about everything that happened, forget about that stuff, just listen to the story that we are selling you and decide the case based on that. It's just a nice moment of like, no, you have to accept that. Don't, what did, what did Gorsuch say, "Don't fight the hypo, lady," or something like that?

0:50:10 Thomas: Yeah Oh,

0:50:46 Seidel: Do yeah

0:50:46 Andrew: Can I just jump in with this because because, Andrew, you have argued before the Supreme Court. Oh, okay, okay.

0:50:48 Seidel: No no not the supreme court no no not the Supreme

0:50:54 Andrew: I have not, but I have argued in front of appellate courts, as have you. I've argued in front of state Supreme Courts, multiple. One it would not occur to me as a litigant, I mean, I can make all the jokes that I want, but every fiber of my being of training as a lawyer would not let me look at Justice Alito and say, you're a conservative hack and you're not voting for me anyway, so I don't give a damn about your question and I'm not going to answer it. And yet that seems to be where we are by conservative legal advocates on the other side.

0:50:54 Seidel: Court

0:51:31 Thomas: Yeah.

0:51:32 Andrew: Right. Who know what.

0:51:32 Thomas: Why would they waste their time, yeah.

0:51:33 Andrew: And you heard that contempt for Sotomayor's hypothetical of, well, you know, I understand why I got to answer your question. Well, the reason you have to is because she's on the Supreme Court and you're not. Right, fact that we've lost that, the fact, right, that we now have a generation of, idiots on the right who can come up through fact free institutions and then get into the Supreme Court and and make fact-free arguments and and they only have to appeal to the people who are already who agreed before they started the argument, is just, yeah.

0:51:42 Seidel: I

0:52:07 Thomas: That's where we are. I mean honestly if you got up in front of the Supreme Court and let's say it was like a seven-two or six-three majority for us, and then Alito or Thomas asked a question about Antifa doing, you know, like some nonsense, you know, like what would you say? Do, here

0:52:10 Seidel: Mean I'm you we actually have that, and you can, you can hear Alito asks a question like that in this case and you Can you can Hear Alito, but I'm just before we listen, I just want to say one thing on that too, because that is something that the lawyers in the secular movement have been talking about for the last five or six years, the fact that the other side is phoning it in, the lawyering on the other side is not good,

0:52:32 Thomas: We go that's another thing I was gonna ask why this this case is so obviously terrible. The facts are stupid. The guy's a liar. Why this case? It's like they're so eager to overturn this stuff that they'll just take anything, apparently. There isn't a better case out there that they could have taken? For them, I mean.

0:52:51 Seidel: Oh

0:52:51 Andrew: Yeah

0:52:59 Seidel: That I can answer well and also thomas this started in 2015 this started In 2015 before the courts were fully gone and they saw football that's america a coach with the name of kennedy that's America America who's a former Marine. That is what First Liberty Institute saw. They didn't think at the time that they were taking this, that they weren't taking a winning case. And you can go back and it's really fun to play around on the way back machine on their website. They took this to fundraise. They take this to sell that persecution narrative that you were talking about earlier. And then they stumbled in to the most favorable court for their side in history. And And the lawyering, the caliber of the lawyer shows that. But yeah, I mean, let's listen to Alito ask that question and listen and see, listen to the tone of his voice. Listen to the, the sneer is audible.

0:53:09 Thomas: Yeah. Yeah. Oh, wow. Jeez.

0:53:36 Andrew: Yeah

0:54:00 Clip: That everything about this case is exactly the same as it was in reality with with this one difference, when Coach Kennedy went out to the center of the field on these two occasions, all he did was to wave a Ukrainian flag. Would you have fired him? It's not a question of firing him. In fact, he was put on paid leave. Would you have done to him what you did to him here? Would you have treated that case differently?

That's absolutely something that can and should be disciplined because the school district doesn't want its event taken over for political reasons. Where is that a school district rule that says that the the school district has to be able to manage its activities and events and that's clear the reason is that I believe that you would have treated that case the same way there's... there's not only is there nothing to suggest that it wouldn't have but it would be it would be absurd to think that uh that a a teacher or coach could take over the biggest school event of the year and in front of the students be pumping for a political for a political cause or agenda the school district has to be able to say what is there in your explanation for the adverse action that you

0:54:48 Thomas: My God. Holy crap.

0:54:52 Seidel: Yeah.

0:55:17 Thomas: This is insane. This is wow.

0:55:19 Seidel: Yeah, I mean that that is that's a that's a Supreme Court justice saying prove to me that my hypothetical case would go a different way.

0:55:20 Thomas: Wow.

0:55:29 Andrew: To me the thing I invented in my head didn't happen that way In my head, right? Like, because he will not accept the answer, which, which is clearly the right answer, right from the school district, which is, yeah, if this guy were going out and doing a political activity at the 50-yard line, we would want to dissociate ourselves from that too, right? We're not endorsing that.

0:55:32 Seidel: Yeah, yeah.

0:55:32 Thomas: Yeah. Yeah. Well, Yeah, they have the right to control that as a school and he's saying, "Show me the rule in the in the, like, rule book of the," yeah.

0:55:53 Andrew: Yeah. Yeah. I prove prove to me, because in my head, you liberal cucks would be out there, you know, saying, "Oh, yeah, but we're pro-Ukraine also." Uh, sidebar, how terrifying is it that Samuel Alito is close to the, like, Alex Jones, like, "only liberals support Ukraine" position? Like, sorry,

0:56:00 Thomas: Yeah. It is a weird thing. Why didn't he, he should have picked, like, a yeah, a pride flag or something, yeah.

0:56:20 Andrew: Antifa or Black Lives Matter? No, no, no, the fact that he went to, yeah, Yeah, I've now tripled down on my negatronism, so, yeah, um,

0:56:23 Thomas: Yeah Ukrainian flag, god. That, is insane. Wow, that poor guy, that boy lawyer, is, like, you heard him, you know, he sighed for, like, 30 seconds, not really five seconds, yeah,

0:56:41 Andrew: Yeah, he Andrewed in the middle of that answer. You could I am

0:56:45 Thomas: He was like, "Oh, god, what do I do with this fucking idiot?" Uh, wow, yeah,

0:56:50 Andrew: Talking to a not very bright child, what do I say?" Yeah, so where do we go from here, Andrew's

0:56:57 Seidel: Work is more important than ever. And I know Megatron, that might seem crazy, but I'm going to repeat myself here too, because this point is just so important. This case is about whether religious freedom is that shield that protects all of us or whether it's religious privilege that just protects the chosen few. It's about freedom without favor and equality without exception.

And if this case goes the wrong way, and we knew we had an uphill battle because of the makeup of the court, but if it goes the wrong way we really are just in the fight of our lives. Because anything other than a resounding win for the school district, for the separation of religion and government, for the religious freedom of students, is going to act as a green light for the religious extremists that we are fighting.

I mean there is a billion dollar shadow network arrayed on the other side of this case, filing these amicus briefs. And they're not just going to dust their hands off and call it a day, If the Supreme Court leaves the door just ajar or even cracks it a little bit, they're going to come kick it in. And we have seen that time and time and time again. It's why I keep coming back on your show. So,

0:57:00 Thomas: Yeah.

0:57:49 Thomas: I

0:58:04 Seidel: You know, I think the work that we're doing at Americans United and the other secular groups are doing, it matters matters now more than ever. You know, Americans United has been defending the separation of religion and government, that founding American principle that's enshrined in our constitution for 75 years. And I think right now we really are in the fight of our lives.

0:58:23 Andrew: I I, want to circle back to the point you made at the very beginning of this. And that was that representing the community were members of the Bremerton clergy that came out in support of the school district. And I just want to underline that point that, the three of us are atheists. We've, you know, had our reactions and the like. But the idea that narrow sectarian prayers should not be engaged in, in a situation where it has an obvious coercive effect on students, is, is a principle. Like, you, you might feel great about beating the atheists today, uh, but you, there are Jews that attend this school, right? There are catholics that

0:58:35 Seidel: Yeah. Yeah, I

0:59:09 Andrew: Attend the school there are muslims that attended the school um it's a hard principle to lose and yeah

0:59:14 Seidel: It's such a good point. Flew across the country to support the school, not the coach, to support The Students, not the Coach. The only supporters The Coach had at the court were his lawyers, the ones who were spinning the deceitful narrative. I mean, that there were clergy up there, Baptist bishop, in fact, quoting Matthew 6, which is from the Sermon on the Mount, which talks about, g, it's in it, it is Jesus condemning public prayer as hypocrisy and then they're quoting this on the steps of the Supreme Court next to Jamie Raskin, who also spoke that day, he delivered, like, this master class on religious freedom freedom and stature separation. Was really remarkable to see. We had a huge crowd at this rally, and the coach had nobody. There's no community rallying behind him. There's not community that uniformly backs him. He's in Florida. He's not even part of the community.

0:59:17 Andrew: Yeah

0:59:39 Thomas: Love that one well

0:59:48 Andrew: Well,

1:00:03 Thomas: I mean, I, I take your point, but also the Mega idiots would rally around this one, and a lot of commenters and a lot of people on the internet think this is all about banning Christian prayer, but, uh, two things I want, my hopeful thing, that's not hopeful, but I agree with you, we're in the fight of our lives. I don't think we have any power in the near future to change the Supreme Court and to make them stop being so stupid and biased on this issue.

But, you know, we can probably do is make the New York Times stop covering this as though it's just the gospel truth from one side of this case, and put almost no effort into covering the other side, the school, as you said, Andrew Seidel, the school, the children, the anybody I mean, that is something we can control, we could make enough noise at the daily they will listen to that, they will listen to this feedback and I think it's profoundly damaging, that episode you know, that gets, Unfortunately, I don't know, an order of magnitude more listeners than we have, but we can make a difference. I think we could pressure them enough to where they would maybe issue a correction on that, because, because they've been known to do it before. And, uh, that's just a dog shit episode. I can't even believe it. I'm so mad.

1:00:11 Seidel: Oh, yeah, yeah.

1:00:56 Seidel: I think so, too.

1:01:14 Seidel: I mean, I'd love to see something like that. I mean, it's almost like there's this deep-seated fear of conservative criticism, and it's so deep that they end up prizing balance over truth, and because of that they got things wildly wrong in in that episode.

1:01:29 Thomas: All right. I still, I can't leave until you tell me why the prayer prayer in the locker room doesn't just end this case. I don't understand. I understand why it wasn't the whole other side. Just, yeah, we fired him because of the thing we all acknowledge is wrong. Can't that just be the answer? I don't get it.

1:01:30 Andrew: Here

1:01:36 Seidel: I because again, the entire, the entire point that the other side is trying to make is forget about all of the facts, just pay attention to the one time that he prayed with his head down by himself, right? And this was going on for a long time, right? Like, he was doing these prayers, and they may have started off genuinely him on his own at the 50 yard line, but quickly grew to students joining him other

1:02:03 Thomas: Yeah. But again, if a guy robs a bank, but then also did something that was like kind of borderline or something, you can't be like, like, well, forget the bank robbery. Like that. Yeah. I got fired for the bank robbery, but forget, forget about that for a second.

1:02:05 Seidel: Yeah yes yes you look at it all the totality you look it at all Exactly.

1:02:19 Thomas: Wow. The poor people, uh, AU and anybody else defending this school district are in, uh. What I would consider a personal hell of having to just forget all the facts of the case, I guess. And, and talk to Alito about hypotheticals that he's mad about that he made up in his head. Oh God. All right. Well, it's about the normal amount of optimism I have after an Andrew Seidel episode, but that's okay. We had so much fun doing it and we love having you on. All

1:02:48 Seidel: It is always a pleasure. I mean, if we're going to go down as a country, it's nice to chat about it with you too.

1:02:52 Thomas: Yeah, absolutely. Every time. Hey, what can people do? Is there a new place they need to... You're still on the same old social media and anything else change if you want people to be able to find you?

1:03:03 Seidel: Yeah, I'm still on the same social media. I would love everybody to go join and support Americans United. United uh We we also are collecting stories from folks who have been pressured in this same way, and lifting those stories up. We have a page devoted to Bremerton, and there are some things that you can do as individuals to get active. There are uh some letters that you can sign on to. Uh, I really encourage everybody to go get involved, because uh we are going to be on the front lines defending against this court and the decisions that they may or may not hand down, every single step of the way. And when those religious extremists come to try to kick in the door, we're going to be waiting on the other side. So we're gonna need all the help we can get.

1:03:08 Thomas: Will do.

1:03:42 Thomas: Can't wait. I'm donating. When When Andrew Seidel tells me to support a thing, I do it. That's just how much I love Andrew Seidal. Thanks so much for coming on.

1:03:49 Seidel: I appreciate that. I really appreciate that, my pleasure, gents.

1:04:01 Thomas: And now it's time to thank our hall of famers, our all-time greats over on patreon.com/law, and it is the final quartile. Ah, can't wait. Love it. Playing the music. I can hear it now almost, even though I can't. It is a fun game for me later in post to see how close I was to the original key. I

1:04:15 Clip: I are. I love the idea that, the way in which you're going to determine whether that was, you in key, is by listening to it later. Like, I could no more do that than, like, compose a sonata right now. Like

1:04:32 Thomas: But let's read the final quartile. Thanks to our top patrons, our hall of famers, our all-time greats on patreon.com/law. And I'll start us off. Thank you. New year, new patron name, same great karaoke legend. Jonathan, Milo Meadsong takes full and sole credit for the retirement of Stephen Breyer. Join your labor union. Together we bargain, alone, we beg. Give to modestneeds.org, then visit deepfakestop.com. Rapid Offensive Unit Solution Adult.

1:04:59 Clip: Oh.

1:05:00 Thomas: Interesting. Felony trial for Sergeant Javier Escueda in retaliation for whistleblowing police misconduct begins in July. Ten little lawyers yelling at the stand. One went off and broke his hand. Mama called your honor and your honor said no more. I could do that. If we do do that song with my kids, the five little monkeys or something. Yeah. Don't. Word origins.org has a new book from bar flies to Bitcoin. How words map our modern era available on Amazon. My witty names aren't original and my original names aren't witty. False. Anonymous. Not That Chris Wallace, Emotion and Lemonade, Chris Waltrip, Derek, Dude, Malcolm the Dragon, The Precious Variant, Liz Puffycoats, Our Violence, W, Big Easy Blasphemy. Please don't read this on the pod. We don't need a call out. Thanks for what you do.

1:05:00 Clip: Really.

1:05:47 Thomas: Who are you? The Scatological Who Tribute Band. Who are You? Yeah, okay, got it. RhondaTheDork.com. And your turn, the final octile here.

1:05:59 Clip: I'm still singing that version of Who Are You in my head. But as as Who Are You. All right, thank... this This is, I think we can all agree, the best octile that ever was or ever will be. Thank you to a string of unpronounceable characters. Malika Chandler. They said I could be anything, so I became two princes who adore you. Soggy Pants. Adopt homeless pet, oppose declawing and ear ducking. Day Jury Belly at Packy's at last, baby. Heather L. Matthew Vernon. Therese Chan. Ian and Allie. Danny Rosari. Eli Bosnikus to change his patron name because Patreon gave up on his blog too. Butterscotch the Cat. Adam Costa. Invaginate David in Brooklyn. Sam Donnell. Mitchell Blorco. Number five, Michael Ropps. I agree with that a hundred percent. Sam Buck. And of course, our all-time great, he who shall never be overthrown, Conrad Michaels.

1:06:01 Thomas: Yeah. Yeah thank you so much, top patrons, hall of famers, uh, you're the best. Patreon.com/law, if you'd like to join their ranks.

1:06:55 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

1:07:01 Thomas: And now it's time for T3BE answer time. Real property, throwing tons of real property at me. I don't know what happened. Andrew, did you just want me to feel like I can never be a lawyer? I guess either way, no, it's the sanctity of the game, let's see how I did, yeah.

1:07:14 Clip: This was, a mother owns Black Acre, and this didn't make it to air, but you were asked, are you sure we didn't do this question before, and Black Acre is like, like, I don't know, it was in like some 16th century Saxony, like, you know, treatise. It's just property is called Black Acre in law examples. I don't why.

1:07:33 Thomas: Because pirate law is the the origin of everything. I don't know.

1:07:35 Clip: Could be. Mother owns fee simple in Black Acres. She validly executed, conveyed the land to her daughter via quick claim deed. Her daughter paid no consideration, failed to record the deed. Six months later, her mother asked the daughter to rip up the deed and stated that she wanted the property back. And then the daughter does that voluntarily destroys the deed. Mother and daughter were killed in an accident a week later. Not suspicious at all. They both died in test it, which just means without a will. It doesn't affect the question at all. Of the mother and the heirs of the daughter both claim title to Blackacre, who has title.

Uh, Thomas, you instantly narrowed this down to the two, the only two answers that make sense. The mother's heirs because the daughter ripped up the deed, that's B, and the daughter's heirs porque the daughter never effectively passed title of the land back to the mother. Uh, first eliminating A, the mother's heirs because the daughter never recorded her interest in the land correctly, uh, realizing that a quick claim deed does not require you to do that, and also eliminating C, the mother's heirs because the daughter did not give valid consideration in exchange for the land. You don't have to do that, right? Like, you can, um

1:08:03 Thomas: This isn't contract law. This is real property.

1:08:42 Clip: Exactly. Right, you can give land away when people give, you know, mothers give land to their daughters all the time, so um, then the question is, is it the motherís heirs porque the daughter ripped up the deed, that's B, or is it the daughterís heires porque the daughter never effectively passed out of the land back to the the mother, and as you might imagine, it is D, you know.

1:09:02 Clip: I know, so here's the thing, you, you said because it's a quitclaim deed, you're thinking that's like the monopoly thing, and that means you have to actually have the deed and present it in order for it to work, that is a totally, I completely understand the thought process that got you there, um, it's actually the exact opposite it. A quitclaim deed is when you give up all your interest, whatever that might be, in a piece of property. And the reason you do that, there are a couple of different ways. So you would contrast a quitclaimed deed with a warranty deed. So a warranty deal, and there are special and general forms, and that's important in commercial transactions, but not important here. The general category of a warranty deed is that you warrant a thing. You say, I own this property, I warrant that I own that to you, and I am conveying the stuff that I warrant, that I own to you.

And that's really important, as you can imagine, in a lot of transactions, because it provides the buyer with a level of protection. They are not just buying whatever your interest in the land is. You are saying, no, no. I own the land. I'm prove that to you, and then you'll own the land without any encumbrances.

And so if you screw that up, if it turns out that there's a mortgage, or you sold half the land to somebody else, or there's common law easement across the property that you didn't describe,

1:09:02 Thomas: Oh, gosh, dang it.

1:09:20 Thomas: I could have figured that out. Yeah. This

1:10:27 Clip: Or any of a number of things that make the property worth less than what you said it was worth, then the person can sue you for violating the warranty conditions of the deed. A quit claim deed says, yep, I got a piece of property. And whatever I own in that, I'm giving up and you own it now. And so there's no warranty associated with it. There's no guarantee of anything. It is often used in precisely the situation that this question gives rise to, right? Like family members, right. Because, you know, you don't want to have to go through and get a title insurance company and do a search. And you You're just like, yeah, I'm giving my house to my son.

1:11:01 Thomas: Is yours now.

1:11:02 Clip: Yeah, here you go. Yeah.

1:11:02 Thomas: Yeah, I almost was there. I almost had it because I said like, oh, maybe she needed to do a quit claim deed to give it back.

1:11:05 Clip: And yep.

1:11:08 Thomas: And for some reason, I didn't answer that. I I don't remember why. Mistakes were made.

1:11:11 Clip: Yeah, no, you were so close. I was

1:11:13 Thomas: I was very close.

1:11:13 Clip: Rooting for you the whole time, but that's right. So you can't just give up because the moment that that quit claim deed is executed, you have voluntarily quit all of your claims to the property. Yep.

1:11:25 Thomas: The daughter, it was almost like her CVS receipt. And she's like, all right, well, I'm tearing this crap up. And then that doesn't mean that she doesn't own the goods anymore, essentially, kind of.

1:11:35 Clip: That's an excellent way of thinking about it. I never would have thought of that. But yeah, it's it's, it serves like a, like a receipt. Yeah.

1:11:41 Thomas: Dang. Well, I am. I'm going to get a question right again. But I feel better about this failure. It was a better failure than recent failures.

1:11:50 Clip: Better than that even, right? Because there was such a mismatch between absurd bar hypotheticals in reality, because right, imagine in this scenario, let's, let's put in facts that that do not contradict the facts in the scenario there. Now, these are not specified, but they don't contradict it. Suppose everything is exactly the way it's right. Right. Mother writes a quick claim deed to the daughter, but doesn't tell anybody. Right. Daughter sits on the deed, doesn't tell anybody, doesn't record it. Mother says, Oh, yeah, can you rip that up? Daughter rips it up. Doesn't tell anybody. And then they both die a week later. Then in reality, in the practical universe, right, the mother's heirs would go would do a title search. And it would be like, Oh yeah, well, you know, she owns her. She owns her house. Uh, we don't see any there's nothing in the record that indicates that she doesn't own the house, yep, yep, yep, um, but

1:12:20 Thomas: Yeah. Uh-huh. Yeah. Nope. Free and clear. Yep. Yeah. I kind of even alluded to that with the, uh, with the deed falling in the forest and not making a sound. Yeah, no, totally. Yeah I could have had this one. Oh well.

1:12:47 Clip: There is, there is likely to be extrinsic evidence, right? Particularly in today's day and age, there would be an email yeah, yep, I did that, "Mom," and that, and that. That, and ironically, right, "I did that, Mom," would actually be the smoking gun evidence that the heirs of the daughter would need to find.

1:12:49 Thomas: Yeah yeah an email like rip up that quit claim deed. Yeah no that would give it away. Good point. Yeah oh well Oh, because she stated.

1:13:09 Clip: It would explain why no document exists. Right. So in other words, suppose you represent the heirs of the daughter

1:13:13 Thomas: Oh. So you're saying her saying I did that mom would actually prove she owns the land. Ah, gotcha.

1:13:16 Clip: Correct. Correct. Yeah. But but think of how counterintuitive that is. Like it would make a great, know, you Law'd Awful Movies rewrite plot because think of how counter intuitive that is that like

1:13:26 Thomas: Yeah it's so counterintuitive I got this question backwards. Yeah.

1:13:31 Clip: That That as the heirs of the daughter, you are looking for an email that said, yes, mom, I ripped up the deed just like you told me to because that would explain why no deed exists, so yeah, all,

1:13:41 Thomas: Yeah, yeah, yeah. Oh, that's funny. Well, I got stumped. That's okay. Let's find out which brilliant listener is going to win the never-ending fame and fortune this week.

1:13:54 Andrew: Well, Thomas, a lot of people played along with T3BE this week. Before we get to the winner, I want to give a shout out to Jason Hochstadter, who sent us an absolutely outstanding Zoidberg gif, but Jason, you should know better, Zoidburg never wins. Also, a nice shout out Spuds McCrazy, which is a great name, who pointed out that it was in Greece where John Travolta races for pink slips, so that was a great reminder. Commander, but still not a winner.

A couple of folks got the key analogy, which is that the paper sort of acts like a receipt, and the best and earliest came from Justin Gilia, who writes, "If I give you property with a receipt saying that I've given up all claims to that property, it will take more than ripping up the receipt for me to have a valid claim to that property." Again, not an analogy you ever hear in law school, but this makes so much sense, makes it absolutely clear and is absolutely correct. So everyone, let's give Justin a follow on Twitter, they are at Hot Duck Soup, probably a Marx Brothers reference, at h-o-t-d-u-c-k-s-o u-p and congratulations, Justin Gilia, on being this week's winner.

1:15:09 Thomas: And that's our show. Thanks so much for listening. Thanks to Andrew Seidel for, you know, just Andrewing in the wake of these terrible, terrible decisions by the Supreme Court. It. I'm sure we'll have them back once enforced habits in public schools happen. I don't know, you know, like the next thing, who knows what it'll be. Mandatory rosary wearing and yeah, I don't know. We'll get there eventually. And when we do, we'll have Andrew Saddle on. But until then, thanks so much for listening, everybody. Remember to catch us at that live Q&A on YouTube on May 10th, Tuesday. That's 5 p.m. Pacific, Pacific, 8 p.m. Eastern. We can't wait. It's always so much fun, but we'll see you next episode.

1:15:13 Clip: Andrewing until Then 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.

1:16:25 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash 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.