OA608: Forget Church-State Separation, SCOTUS Mandates Christian Favoritism

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 608. I'm Thomas. That's Andrew Torres, second most known. How are you doing?

0:01:23 Andrew: Well, I, I have a feeling I'm gonna be the second most beloved Andrew on the show today.

0:01:30 Thomas: No, what?

0:01:30 Andrew: So a little bit, but you know, no.

0:01:31 Thomas: Why would you possibly? You're a number one, Andrew. I would never say otherwise. Wow. This is an attack on me. I don't know where you're getting this.

0:01:40 Andrew: I am. I am super excited to welcome back, uh, Andrew Seidel and, um, and I'm, I'm happy to to take a little bit of a backseat just because he is, uh, that fabulous. So, so I'm fantastic. How are you?

0:01:52 Thomas: I'm great. I want to talk to Andrew Seidel, and you know the deal when Andrew Seidel's on, so let's skip the everybody knows what's coming let's get to it uh we are joined by the one and only, our favorite Andrew by far, Andrew, Andrew Seidel, yeah, I was saying mine and Andrew's favorite Andrew, wait, that makes sense, we can't, oh,

0:01:52 Andrew: Yeah,

0:02:01 Clip: Hello! Operator! Give me the number for 911!

0:02:11 Andrew: That's true. No, that's... I was going to say, you could take a vote in my household, and I think Andrew Seidel would still win.

0:02:22 Seidel: No, no, no. Never. I am pleased to be joining you as the world slash country burns around us.

0:02:23 Thomas: Andrew's title, how you doing today, yep, I think by now everybody knows what this episode is when you're here, I think that means we're just wondering. I think we all we see Andrew Seidel's on opening arguments and we're like, all right, what am I? Do I have to wear the head thing now? Do what phase are we at in The Handmaid's Tale? You're

0:02:48 Seidel: Yeah.

0:02:48 Andrew: Well, we had you on to discuss Carson versus Makin, which came out last week from the Supreme Court. Let me give you my understanding, you tell me if, if I've got any of sort of the factual background wrong, because one of the things that has happened, and you know, you've been boots on the ground for this, is that sometimes, and I think the fact's pretty bad here, but sometimes they're even worse than the Supreme Court lets on, so uh having read the pleadings at the lower level, having read all the briefs, um, seems to me the case breaks down like this.

Maine is pretty rural state, and there are areas of Maine that are incredibly loosely populated, and so in those areas where it doesn't make sense to build an entire new school district for like eight people, the, the state has had, uh, for 40 plus years, uh, a program where the state will give tuition assistance to parents who live in those school districts that do not operate a high school, right, and do not have an arrangement to transfer your kids to another high school, right?

So in other words, you got no high school options out there for at the government level. And so the state has said, hey, if you happen to live in one of those areas, we will give you a tuition credit to attend a private secondary school.

0:03:13 Seidel: Yeah. I

0:04:10 Andrew: But not going to give that so that you could go to Ken Ham's Academy of Counting Animals, right? Like, schools have to meet certain requirements, right, they have to teach minimal standards, Right. They have to be accredited by the New England Association of Schools and Colleges. They have to get approval from the Maine Department of Education. And that this is what I understand is the basis for the lawsuit. They may not be narrow sectarian schools. Right. Be they could they could have a religious component to them. I want to discuss what that could be. But but they can't beingain, you know, fundamentalist Christian Academy U. And again, that law has been in place since 1981. And now all of a sudden, with just by crazy random happenstance of this Supreme Court's composition, we've discovered via the Alliance Defending Freedom that that law is unconstitutional. What do I got wrong on that, Andrew Seidel?

0:05:05 Seidel: Mean, that's pretty correct. I mean first of all, I have been to Ken Ham's School for Counting Animals in Kentucky. Terrible, terrible place. But yeah, this is a program that is meant to provide a public education, right? That's the goal. And so because the state is taxing citizens to fund that education, it put in place some safeguards to ensure that the religious freedom of taxpayers and of the students wasn't violated. So that means that the money the state is going to be spending had to be spent on a secular education, right? Just like what you would get at a public school, not like at Ken Ham's terrible institute. And the program was actually challenged by two of these sort of groups that are part of this shadow network. First, Liberty Institute, which is the group that's behind the Kennedy versus Bremerton case and the Bladensburg Cross case and a number of really just a Christian nationalist legal outfit that's been doing some serious damage.

0:06:05 Seidel: And then Institute for Justice, which is literally the quintessential Koch-funded conservative organization. Like in Jane Mayer's book, Dark Money, it is one of the organizations she holds up.

0:06:15 Thomas: When's that other Koch brother going to die? Why is there still one Koch brother who seems to be doing just as much harm as they did together? Maybe the other Koch brother wasn't pulling his evil weight all this time, and it was just the one that's left was doing all the evil.

0:06:26 Andrew: Yeah okay

0:06:22 Seidel: Yeah, yeah. I crucial to note, because, right, this isn't just like parents who are just deciding, like, oh, my rights are violated. Like, this is part of it. This is part of an orchestrated crusade to tear down public education. And again, the point of the program is to provide public education, so. And I'll tweak one small thing you said, Andrew. Drew, as the program, as it was challenged, it was set up so that religious schools could receive program funding so long as the funds were used for secular education, not a religious education.

0:06:32 Thomas: Right, yeah, for

0:06:56 Seidel: So basically, they're not discriminating against the character of the institution, which was the claim in the Espinoza and Trinity Lutheran cases that I have been on this show to to discuss, but stopping the use of the funds for religious education or indoctrination. So again, this wasn't discrimination, but it was a practical way to ensure a free public education.

0:06:55 Andrew: And We were on opposite sides of predicting where the Supreme Court would come out in Trinity Lutheran, uh, you took the pessimist side and And one handily, I set up a multi episode sequence of events predicting that, of course, the court was going to go the other way. And that's because I very foolishly believed that a 2004 opinion issued again by fairly conservative Supreme Court counted as as precedent. And so I am speaking, you know, immediately from the tip off, but for our listeners of a case called Locke versus Davey, which is, again, 540 U.S. 712 from 2004 involving tuition assistance payments made in Washington state. So Washington state had a college scholarship fund to take certain students and then would pay for their college for some of their college expenses.

0:08:16 Andrew: And the program excluded one particular use of the scholarship. Right. Just one. The quote, essentially religious endeavor of pursuing a degree designed to, quote, train a minister to lead a congregation. Okay, the Supreme Court said yeah, that's totally fine, it makes complete sense when you're talking about a you're talking about state tax funds being used to fund scholarships for its citizens to say, hey, you know what, um, you can be whatever you want to be, but we're not going to take tax dollars and use that to fund to turn people into ministers, that seems wrong, right, that with dissent, nevertheless, it seemed like the Supreme Court got it right and that that was the correct roadmap to use in cases like Trinity Lutheran.

0:09:04 Andrew: Right. And again, you and I, the three of us sort of lived in that Trinity Lutheran was the you have to open up repaving of school playgrounds to religious institutions as well. Right. And you can't say, when we are taking a government program funded by tax dollars, you can't exclude the institutions that contribute zero dollars of those tax dollars, that that becomes religious discrimination.

0:09:33 Thomas: Some reason, yeah.

0:09:34 Andrew: Right. That's how Trinity Lutheran rewrote the law.

0:09:36 Thomas: And the thing that was even more depressing for the non-lawyer here is how much of the court went for that. I mean, that was a bunch of the liberals on the court right or at least two of them seven two right

0:09:42 Andrew: Yep. Yep, seven to. Yeah. Yeah,

0:09:47 Seidel: Yep. And rewrote the facts in reality. I mean, in that case, it was not a playground. It was a childhood ministry attached to a church. That's where the playground was. And they just ignored ignored that aspect of it. Like that, that the whole point of it was to convert really little kids to Christianity for life. And the court was like, yeah, we're just going to not pay attention. We'll pretend that fact doesn't exist.

0:10:08 Andrew: And and again, just I want to underline the aggressive nature of these current claims of religious liberty. The argument in Trinity Lutheran was state may not pass a law. Again, if the majority of citizens wanted to participate and receive tax dollars, that was not the issue here. Right. This was this was not a question of, you it was forcibly. This was a publicly enacted law supported by a majority of Missourians that said, hey, we have limited scholarship funds here. We can only send you and we can only repave so many children's playgrounds. You know what?

We're not going to write a big check to religious institutions. You guys are doing fine on your own. And by the way, You didn't help us out with this tax burden to start with. So, uh, how about we have this separation of church and state thing? You guys run your playgrounds the way you want, uh, we'll help public schools that kind of need the help. And Trinity Lutheran said that's religious discrimination, that despite there being a very rational basis, try that there's no reasonable basis to discriminate, uh, that it can only be motivated by a negative animus against religion.

0:10:35 Thomas: Yeah now why are we on Trinity Lutheran because we're that's like 10 handmaids ago isn't it oh

0:11:23 Andrew: Not yeah. And

0:11:28 Seidel: Well, I mean, it's, it's worth, it's worth noting because Andrew's trying to talk about Locke versus Davey and, and this, this used to be the rule and it used to be a very clear rule. Let's bring it back to Carson versus Makin. And one of the schools in this case was Bangor Christian and its educational objectives included having, quote, unsaved students trust Christ as his or her personal savior and then to follow Christ as Lord of his or his life, end quote. And, and, and to, quote develop within each student a Christian worldview and Christian philosophy of life, and quote, okay.

0:11:51 Thomas: My god classic public education stuff reading writing and jesus christ your lord and savior and you devote your that's the third R, right?

0:12:11 Seidel: Yeah. So this so this is not it's right. This is not education. That's indoctrination. And that's fine if you want to do that at your Christian school. But that is what the First Amendment is meant to prevent taxpayers from funding. This is the most basic concept of religious freedom is that the government cannot take your money and then turn around and give it to a religion that is not your own. That is government enforced tithing. Roberts and the five other conservatives. And I have to say, like, and I'd be very curious to hear your opinion on this, Andrew, like one of the most poorly reasoned opinions that I've read in a long time, that they gaslit the country and they held that not funding religious education and indoctrination with public tax dollars is it self-discrimination that violates the free exercise clause of the First Amendment to the U.S. Constitution. It's crazy.

0:12:59 Andrew: It I agree entirely with all of that, well, that will not surprise you. I want to add a little bit more color on top of this, because I think there's a further offense to the First Amendment that extends beyond indoctrination into religion. And again, I shouldn't have to be making this argument. And that is the essentially political character of what is circumscribed by, quote, a Christian worldview. That is, in practicality, for each and every one of these schools, as far as I can tell, we're available, and I've gone and I'm looked on the websites and looked at their statement of beliefs. These align 100 with conservative Republican political talking points. Right. So Christian worldview means anti-abortion but pro-death penalty. Christian worldview means anti-LGBTQ rights. Right. These are not just you random selection of beliefs that happen to, like, this is part and parcel of one modern political party's political. Well, back when they had a platform. And and the reverse would be the case.

0:13:22 Seidel: Absolutely.

0:14:08 Andrew: There. Right. Were an organized effort to create charter schools that were teaching exclusively outcome-driven Democratic talking points, good. Right. Citizenship is knowing how to be in favor of gun control and knowing how to protect the rights of those who become pregnant to terminate their pregnancies. There is a 100 percent chance, right, that that would run afoul of coerced speech and viewpoint discrimination under the First Amendment. You would say, no, we're not, we're not going to take kids and teach them that the Democratic Party's talking points are correct.

0:14:46 Seidel: The point this crusade. The goal is to weaponize religious freedom in this way. And this is why at Americans United, we've been talking about how this decision really gaslights the entire country in really egregious and shocking ways. Two I basic ways that the court is gaslighting us on both equality and discrimination here. Remember, like non-discrimination, the court's version of non-discrimination is the basis for this opinion. Right. The court is basically saying preventing discrimination against Christians is what we are doing. Right. That's simply not true. Instead, the Court is allowing Christians to discriminate and then enforcing tax or forcing taxpayers to fund that. OK, so their court is doing it. And this is what you're talking about, Andrew, by focusing only on the rights of Christians and ignoring everybody else's rights. And the word for that is discriminating.

0:15:40 Thomas: Yeah.

0:15:41 Seidel: Right. So. So the court cares to claim about non-discrimination. Discrimination, but let's just pause for a brief moment to look at some of those things that Andrew's talking about, about what these schools do. Some of the schools at issue in this case, they engage in just some of the most vile discrimination out there. So both are private religious schools and both discriminate in their admissions and employment against non-Christians and LGBTQ people. So the Temple Academy, which is in Waterville, bars admission to LGBTQ students and refuses to admit students with LGBTQ parents, it says, listen to this, quote, homosexuals are not eligible for employment as teachers at Temple, end quote.

Their employment agreement, so their teacher employment agreement states, quote. The Bible says that God recognizes homosexuals and other deviants are perverted that such deviation from scriptural standards is grounds for termination. OK, so that's one of the schools that taxpayers are now going to be forced to fund. Bangor Christian School is another one. It will, quote, not hire teachers who identify as a gender other than that on their original birth certificate. And here's another fun one. Their ninth grade social studies class, one of the educational objectives there is to, quote refute the teachings of the Islamic religion with the truth of God's word. And now Muslims in Maine who pay taxes are paying

0:15:40 Andrew: Yeah

0:16:13 Thomas: Wow. Jeez. Wow,

0:16:58 Seidel: For that teaching. Okay, so the court is concerned with discrimination discrimination when conservative Christians make that claim, but not when those claims actually further real discrimination, right? Like where was this concern for discrimination in the draft opinion that abolishes reproductive freedom, that imposes that conservative Christianity on us all, regardless of our personal religion or lack thereof?

0:16:58 Thomas: You don't understand, it just hands it to the states though.

0:17:23 Seidel: Yeah. I mean, or when the court rubber stamped that conservative Christians' discrimination against a recently engaged same-sex couple in Colorado, or when the Trump administration banned Muslims from entering the country, okay, right? Like, they're concerned with discrimination when it's against conservative Christians, and they do that by ignoring everybody else's religious freedom. Second part that I think is really crucial on the gaslighting is that the flip side of discrimination is equality. And, the separation of state and church is one of the ways that our constitution Constitution guarantees equality. Religion is not favored over non-religion and no religion is favored over another. And is what this court has been assaulting and dismantling. And this is what I document in my new book, American Crusade, So what the right? Court does is it just focuses on the religious freedom of Christians, specifically conservative white Christians, like the ones who hold those vile beliefs we just went over. And it ignores the religious freedom of everybody else. That is how it arrives at these decisions. That's what they did here. That's why I explained an American crusade.

0:17:24 Andrew: So

0:17:42 Thomas: Yep.

0:18:27 Seidel: That what it did in Espinoza versus Montana. I think we discussed that in episode 403, if people want to go back and listen. The right at issue in this case lies with every single taxpayer. Thomas Jefferson explained it's like way back at the beginning of the country, the Virginia Statute for Religious Freedom is the forerunner for the First Amendment, and Jefferson wrote in there that, quote, "To compel a man to furnish funds for the propagation of ideas he disbelieves and abhors is sinful and tyrannical," and that is what the Supreme Court is doing.

0:18:59 Andrew: I agree entirely.

0:19:01 Seidel: I have a big soapbox today, Andrew, you you should just be prepared for this.

0:19:01 Andrew: No no no no I'm I'm jumping up on there with you. My argument is that it gets worse, and part part of the reason that gets worse is, u, the three of us have been discussing the practical implications here, and the practical applications are terrifying and defensive, and I think condensing it down to the one point for Uncle Frank is, yeah, Muslims who live in Maine have to pay to fund schools that teach that they're wrong, right? And I cannot imagine something that more offends the historical principle of separation of church and state than a religious group having to pay to fund a school that teaches why their religion is incorrect. That is, as you point out, sort of the entire historical basis for the religion clauses of the First Amendment.

0:19:55 Andrew: My argument as to why it gets even worse is part of the through line that runs throughout your appearances here on the show, goes all the way back to Trinity Lutheran. And it is, as a lawyer, as lawyers, right, we look to trying to figure out what the rules are in order to advise our clients how they can behave.

And I get that there's a little bit of inside baseball sort of technicality on this, but I don't think this is a hard concept to grasp, you, you, right, figure out what the Constitution permits and prohibits, and then when somebody comes up to me and says, hey, um, we're a school district, can we do x, I can give them an answer, right, or a requisite lawyer that represents that people and school districts in those cases can give him an answer.

And prior to about five years ago, I mean, again, we did lots of terrible decisions and conservative courts, nevertheless, right, within the last decade, right, five or six years ago, we had a pretty straightforward answer to those questions. And it broke cases down into two areas: free exercise claims and establishment clause claims, right, and those stem from, free exercise claim say that government shall not, uh, prohibit the free exercise of religion, establishment clause claim say that government shall not establish, uh, a religion, right, and those broke down into easily understood rules. The free exercise clause, uh, was governed by notorious liberal Antonin Scalia, uh, and we have talked about this at great length. And that decision was Employment Division versus Smith, that involved Native American practitioners who

0:21:33 Andrew: Smoked peyote as part of a religious ritual on their days off, and then were fired by Arizona and were denied unemployment insurance benefits because it said they were fired for cause. And Scalia basically said, you know what, if you have a neutrally applicable law and it offends your religious beliefs, too bad. We can't have a society if you just get to opt out of every law because your religion doesn't like it. And that's what governed free exercise clause, put a pin in that. For establishment clause cases, we had the Lemon test. Now one of the problems with the result that has come about in the cases that you've been on to discuss is, this Supreme Court has basically blurred the line between both sets, sets of cases.

0:22:19 Andrew: They have effectively overruled Lemon. We talked about that the last time you were on. And they don't seem to know if a case is an establishment clause case or a free exercise case, and they don't seem to care. And so this sets up the question that I want to ask you, which is, this, this place was brought as a free-exercise case, freedom, right, to exercise your religion, which now includes the right not to be discriminated against in the distribution of government benefits. And I am terrified that this case has effectively overruled, uh, Scalia's opinion in Employment Division versus Smith.

0:22:56 Thomas: Wow, you are terrified that a Scalia opinion has been overruled? That's a bad sign of where we are.

0:22:58 Andrew: Yeah, it. Really is, um, and so if you look at page seven of the opinion, opinion, there are two signs that like are just immediate huge flashing red warnings. Uh, Jeff Blackwell emailed me about this, right, like any lawyer, you kind of get to this and you're like, oh, okay, I see, this is what the court is doing. On page seven, it first, it says, "In particular, we have repeatedly held that a state violates the free exercise clause when it excludes religious, religious observers from otherwise available public benefits," see Sherbert v. Verner, which is the 1963 Amish case that was almost explicitly overruled by Employment Division v. Smith. Sherbert, right, versus Verner has not been good law since 1990. That's why RFRA was passed, right, it was explicitly to reinsert the Sherbert vs.

0:23:49 Andrew: Verner test. And so citing it as if it is the the controlling case is a way of saying, yeah, we're going to pretend like Scalia never wrote Smith. This opinion never cites to Smith. And then it gets worse because it always gets worse. We have, I just don't even know how to parse this. The next sentence, cutting out citations, is a state may not withhold unemployment benefits, for instance, On the ground that an individual lost his job for refusing to abandon the dictates of his faith. See Sherbert. And then there's another citation to a 1981 case. That was the explicit holding Scalia wrote in Employment Division versus Smith. A Right. State may withhold unemployment benefits simply on the grounds that an individual lost his job for refusing to abandon the dictates of his faith.

0:24:38 Andrew: That's what they did in that case. They said, yeah, no, our religious beliefs are ingesting peyote on the weekends, and we're going to continue to apply by our religious faith. And Scalia's like, cool, that means you can be fired. Misreading this, Andrew? Am I out to lunch? Or is this meant to be a signal of, yeah. Don't come in here with Employment Division vision versus smith anymore

0:24:59 Seidel: I don't think you're out of bounds at all. I don't think you are reading too much into those. When I read those parenthetical descriptions of those cases, let alone seeing those cases, I was alarmed as well. Uh, I think Smith took a serious hit in the Fulton versus Philadelphia case. Um, Roberts effectively, um, wrote an opinion that kind of, I think, fully circumvented Smith in a way that a lot of people didn't realize, and that we're only gonna, gonna see more of in the future. Absolutely think all, it's almost too hard. What you're really talking about, Andrew, as you know, our role as lawyers is, you know, we're talking about the rule of law and, and the radical and rapid shift that I have been warning about on this show for so long. Actually, you know what, Sotomayor explains it in her dissent.

0:25:45 Seidel: She did a really nice job and And she said, you know, what a difference five years makes. In 2017, I feared the court was leading us to a place where separation of church and state is a constitutional slogan, not a constitutional commitment. Today, the court leads us to the point where the separation of the and state is a a constitutional violation.

0:26:05 Seidel: She's not wrong. That's what the court has done with the First Amendment says Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. And the court has essentially said that those first few words are a violation of those last few words, which is insane and completely shows how textualism is bullshit. This is exactly what I expose in my new book, American Crusade, and it's exactly what we are desperately fighting against, that Americans united for separation of church and state, because, again, none of this is an accident. In, right? This is the result of a deliberate campaign to destroy this founding American principle. And it really is, Andrew, it's not just a direct threat to the rule of law, but a direct threat to our democracy, because without that foundation, our pluralistic democracy really begins to crumble.

0:26:04 Thomas: Wow

0:26:53 Seidel: And that is what we are seeing right now. Because without that separation, religious freedom becomes religious privilege. And this is where this court is taking us, to a Christian nation where conservative white Christians are a special favorite class and everybody else is second class citizens. And that's why they are weaponizing religious freedom like that. And I appreciate that you want to talk about the tests and Smith as precedent and whether or not it's still valid, but overriding principle with this court, with these justices, is not reality or the law or the Constitution's or any of the legal tests that that we've all learned in law school, or that your listeners have learned on your amazing show, but simply this: Christians win

0:27:36 Thomas: I was going to ask if that's a reason. And, you know, Andrew, you mentioned, like, the Schrodinger's precedent of these, like, it's, is it, you know, is Smith, is Lemon, is whatever, are these valid? I'm wondering if that's sort of a purposeful strategy to be able to say, when a Christian comes in and says, "My rights are violated," oh yeah, totally, yeah, your rights violated a hundred percent. But when, you know, a Native American comes in, and says, "Oh, my right," then it, then it no longer applies. Is that a way of just having it both ways? It is precedent when they want it and it isn't when they don't.

0:28:10 Seidel: That's, I think that's true. Um, you know, one of the things that I've seen a lot of in response, and to this decision, was people suggesting, like, oh, I can't wait to see the Satanic Temple start up their school in Maine or the Pastafarian school or the Wiccan school. And look, there's literally one Jewish school in all of Maine, Levy the Day School in Portland, which I think has like 65 or 70 students, right? Remember why we have this program in Maine in the first place. It's hard for the state to organize schools in these really remote areas for, you know, four or five students. It takes a lot to build an actual physical physical structure and put together the other infrastructure that goes along with the buildings, the roads and the parking lots and the playground equipment and the property that you need. Then you have to get teachers and then you Have to get a curriculum. It's a lot of investment. It's A very high bar for anything but the most established entities, states or longstanding religion. And that is part of the point here,

0:28:19 Andrew: Yeah yeah

0:28:19 Thomas: Yeah. Burn

0:29:09 Seidel: Right? So you can appear to have equality in principle while never having equality in fact.

0:29:16 Andrew: And let me play that out because I I'm picking up what you're putting down I just want to be very very explicit about this and and forth and there are a ton of terrible takes and it is this, this is not like putting up a statue of Baphomet that cost $10,000. It, right? Costs millions of dollars to build out the infrastructure for a public school. You have to pass all sorts of regulatory hurdles that the Satanic Temple is not going to build a school in Maine. And even if they did, the courts would just find some ad hoc way around it. It the idea that, you you can turn this into like, a public displays case is is just it's not, it's laughable. It's it's a bad take and you should feel bad for it.

0:29:17 Seidel: Yeah. Yeah, and I agree with all that. And recall, the Supreme Court already ignored the religious freedom of everybody in this case to favor Christians.

0:30:07 Andrew: Yeah, that's such a good point.

0:30:09 Seidel: That's what it's doing. So the operating principle of this This court is not equality or religious freedom. It's Christians win.

0:30:09 Andrew: That is such a Good Point. Want to go back because again, I want want to quote the uh wise words of, you notorious liberal Antonin Scalia, who said, "The government's ability to carry out other aspects of public policy cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development. To make an individual's obligation to obey such a law contingent upon the law's coincidence with with his religious beliefs, except where the state's interest is compelling, permitting him by virtue of his beliefs to become a law unto himself contradicts both constitutional tradition and common sense."

0:30:18 Seidel: Yeah.

0:30:58 Thomas: That commie atheist at the stake.

0:31:01 Andrew: You cannot square this 1990 Scalia opinion opinion with Scalia's concurrences throughout the 2000s, as the Supreme Court moved to create all sorts of Christian privileges, other than, and and with Scalia is, you know, outspoken conservative Catholicism during his lifetime, you right cannot square those, other than, uh, in Andrew's words right there. Yeah, no, I I mean, the religion for the weird brown people for the right and I did that, Christians like, of course we need to figure out what respects their beliefs. It's, don't want to say that even about Antonin Scalia, right, but nevertheless, like, read, when I read that paragraph, I I, I think all of our listeners, you know, give us kind of an amen there, even our, even our religious ones.

0:31:48 Andrew: Right. That's like, yeah, it makes total sense. You got a government to run here. You don't pull the religious beliefs of your constituents. Don't you don't attack their religion, but you don''t support it either. And that was always the way, you we could quibble with the margins. We could quible with how good the lemon test is. That is, for 200 years, the framework by which religious questions were evaluated in this country. And again, plenty of decisions that Andrew and I would disagree with over those 200 years. Right. I think in favor of a stronger, stricter separation of church and state. But nevertheless, you had something that if you squinted hard enough, looked like the rule of law. Right. Looked like a consistent application with, OK, some privilege here and there.

0:32:35 Andrew: And it's just been uprooted by does is this the law? Is this law the kind of thing that lawyers at the ADF can convince Brett Kavanaugh and Amy Coney Barrett strike them as discrimination against poor put upon Christians?

0:32:52 Seidel: If you want to understand how we got there and how they did this, that is exactly what I detail in American Crusade.

0:32:56 Andrew: All right.

0:32:57 Seidel: I mean, you're just you're right on the money there. We're in a bad spot. I will say there is a little bit of saving grace if people want a littlebit of hope. I can give you a little nugget of hope in the wake of this awful, awful, awful opinion.

0:33:13 Andrew: Lay it on us.

0:33:13 Seidel: So the one saving grace is that this opinion hangs on the fact that Maine was already sending taxpayer money to private schools, right? In other words, but for Maine's original decision to let private schools provide public education at taxpayer expense, the Supreme Court wouldn't be able to have this case. Now, the counterpoint that I'm going to slide right over is the Espinoza case, but we'll just set that aside for a moment and note that you can actually do something about this opinion because have to end all of the voucher and neo-voucher and voucher-like programs in every state that has them.

And the rules should be, and this should be your clarion call here, public money for public schools and now only public schools. So if you want to do something about this, Americans United, we have set up an action alert on our page right now to help you know if this is something you need to take action on to helpyou take the action. So ifyou go to au.org slash get involved, you'll see the option to contact your lawmaker. It's a really easy form. It auto populates. Do that now. And I'll also note that if we had strong public schools and we're busy funding public

0:33:38 Andrew: Yeah yeah

0:33:47 Thomas: Yeah. Yeah.

0:34:25 Seidel: Education and building that infrastructure instead of outsourcing it to private schools, we wouldn't be in this mess right now.

0:34:31 Andrew: Well, we would need to have you on for an entire additional hour because, I mean, look it, the Republican Party agenda is to dismantle public education and replace it with the kind of education that you can opt into that allows you to live the life of an Amy Coney Barrett and go all the way to the Supreme Court without ever being forced to associate with other people who would challenge insane dogmatic beliefs that were indoctrinated into you as a child. And the entire history of our nation, the point of a liberal arts education, the part of of having public education in the first place is to do the opposite of that, right? Is to say, hey, we want you to develop critical thinking skills. We want you you to be exposed to a wide variety of viewpoints. We want you to develop fully and freely as a citizen. These know, this are, you is John Dewey in the 1920s and 30s, right? Like this is a bedrock position that it is no coincidence, right, that Donald Trump picked as his secretary of education somebody who was opposed to public education.

0:34:42 Seidel: Correct.

0:35:34 Andrew: It is no incidence that Republicans want to do nothing about the skyrocketing costs of college. They want to do nothing for loan forgiveness. They wantto do nothing that enables people to break out of the bubbles, the explicitly religious indoctrinating bubbles that folks are in. Because they know when, can homeschool a kid with Ken Ham as much as you want, but you send that kid off to college at age 18, the first person they meet is going to be like, wait, you think the earth is six thousand years old and and you've lost them. They're gone. But if they go their whole life in cargo cult universities run by Jerry Falwell that, know, magically been accredited or the equivalent and go to a cargo cult law school and, you know, then clerk for a judge who shares that. Sorry, I'll stop now. I feel like I've taken over Andrew's soapbox.

0:36:25 Seidel: No, I know. Soapbox is big enough.

0:36:28 Thomas: Well, Just even taking religion out of it for a second, so I understand what's what's even the criteria at all for these things to be considered schools. I mean, is it just that these religious schools are good at doing like the bare minimum requirement to be called a school and then also add in the religious bullshit? Like, why not the Harry Potter School of Witchcraft and Wizardry? Can I get, some sort of funding for that, too?

0:36:51 Seidel: Now it's unclear, right? So originally the school had to it had to be approved. And that essentially meant that it had to be It had to meet two specific things, okay? Either not be associated with a particular belief. But if it was, it could not promote that belief or faith in its curriculum, or at least for the students who were trying to access sort of the public education. So right? It could be religious school and still get this public money so long as it was able to provide a secular education. Right. And so that was what it used to be. And now it's not clear. And I'm just going to throw.

0:37:29 Andrew: And they had to be accredited by the NEASC.

0:37:31 Seidel: Yeah. And let me. Yes. And let Me throw one other really important and fascinating note here is we already talked about and I mentioned how the bigoted nature of this school's educational standards, all of that stuff. The schools at issue um did not make it clear that they would accept the funds if the state actually gave them to the parents in this case so the court should not have been deciding this case.

0:37:33 Andrew: Yeah.

0:37:55 Thomas: Hmm.

0:37:55 Seidel: But um as we've discussed on this opinion and as I detail in the book like they are they want to decide these cases right

0:38:01 Andrew: Yeah. Just to amplify there, that is a standing issue, right? That is, there is not a live case or controversy. Therefore, if this were any other kind of case, right, you would have dismissed it out on standing grounds as being an advisory opinion.

0:38:01 Seidel: Yes correct it.

0:38:15 Seidel: Yes. Thank you.

0:38:16 Thomas: Wow.

0:38:16 Andrew: Well,

0:38:16 Seidel: But now No, that they have six justices who can do whatever they want, they don't care. Standing doesn't matter anymore because they want to change the law.

0:38:18 Thomas: They don't care. And why wouldn't the religious schools have accepted the funding? Is it because of these requirements, okay all

0:38:26 Seidel: That is the question. Because right now, public money means public regulation. And that should mean that they can't impose those discriminatory standards on students and staff and things like that if they're taking the public money. But the court knew about all that and still decided the case in their favor. Now, there's possibly an open question about whether or not that will actually, the funds will actually flow to those schools and what that might mean for those schools. But you can easily see, especially with this court, those schools turning around and saying, no, no. That is our religious belief. You have to let us do that. And you've already said that you have to fund us. You can't force us to do that. So I think it's a little bit of a distinction without a difference coming, especially since the court kind of already decided it.

0:39:14 Seidel: But one thing that our groups, the secular movement, Americans United, all these different groups, Americans Atheists, American Atheist, excuse me, have argued is that if we're going to send public funds to private religious schools, then that means public standards, public regulation, public accountability is coming too. That is theoretically an open question moving forward that we're going to see a clash on soon.

0:39:40 Andrew: I'll wear the Negatron hat on that one. But good argument. And I guess where I want to kind of close, I love that you are always thinking about ways that we can be active and, you take our moment of despair, but then pick ourselves back up the pavement and back in the trenches and do the hard work. I just want to emphasize the position that that puts us in. And so to be clear, I and agree with this 100 percent, your position, the position at Americans United is now get behind the idea that as state laws, it should be restricted to public funds, go to public institutions. And that it was our misguided humanitarian efforts to open those up that this particular doorway.

0:39:41 Seidel: I'm right there with you.

0:40:31 Andrew: And so I just want to be clear that, uh, the reason those exceptions got put in in the first place was out of liberal compassion, right? To say, hey, I totally get it, it must suck to live in rural Maine and to not have a high school within an hour of your house, and so yeah, you gotta, you gotta private school down the street, yeah, great, let's just get, let's get your kids so that they can get to a school that's within 10 minutes and not, you know, impose these terrible burdens on rural Mainers. And we now have to bite the bullet that says, yeah, OK, sorry. Supreme Court's tied our hands. We we tried to do something nice for you. We opened the door crack, and the ADF, you know, drove a bulldozer through it.

0:41:18 Andrew: And so, yeah. So now we've just got to craft a bright line rule, and, um, a couple people are gonna get sucked into it, and I'm really, really sorry, uh, but you should be mad at the Supreme Court and not mad at us. Um, it's a tough position to take, right? We would like to be compassionate, we, in the past, we've been compassionate, but no, no good deed went unpunished, so

0:41:38 Seidel: I mean, I think the conservative legal movement does a remarkable job of weaponizing our empathy against us. I mean, I really think that's true. I guess I would end by saying, like, I know how everybody feels right now. And I know that of this, of the things that are happening and that are being covered on this show right now, this may seem small. You know, our country's on fire. Our democracy is, it's not slipping away, actually, excuse me. It's being stolen, right? The Republic is being strangled.

And if you share values like equality and justice and truth and fairness, you have to come together to stop the arsonist and the thief and the murderer that are trying to burn and steal and kill our country. And that means fighting Christian nationalism. That means fighting for an America where the separation of church and state is not just absolute, but valued. I am talking about a national recommitment to the separation of state and church. And I mean, that means joining Americans United. I really need everybody who's listening to join, because we are fighting a movement that is seeking to privilege conservative white Christians above everyone else, that is seeking to create two classes of people in

0:42:04 Andrew: Here

0:42:49 Seidel: America, the privileged conservative white Christians and everybody else, and that really is what we are on the front lines at Americans United for Separation of Church and State fighting. So please go to au.org and join us today, because we really genuinely need all the help we can get.

0:43:06 Andrew: Here

0:43:07 Thomas: I mean, I already did that last time you came, because I, I like you better than these listeners who haven't done that yet, but if the listeners haven't done that yet would like to compete in their love of you with me, go do that, yeah.

0:43:17 Seidel: I think they should compete. I think everybody listening should compete with each other to become a sustaining member. Give like six bucks a month. That sounds like a great, great, that's an Andrew level.

0:43:19 Thomas: Love it absolutely um Well, looking forward to next time with you, Andrew.

0:43:32 Seidel: It should be in about a week is my guess. I mean, we have the Kennedy versus Bremerton decision coming down or handed down as this goes to air. Are just in a very, very bad spot as a country right now. And it all traces back to the Supreme Court and this billion dollar shadow network that helped pack the court.

0:43:33 Thomas: Oh okay yeah good Good.

0:43:50 Andrew: Well. Said, but it's okay to despair, but we're gonna pick ourselves back up and we're going to organize and we're to work at the local levels all the way up. Thanks for coming on to lay that out.

0:44:00 Seidel: I mean, I'm happy to do it. And thank you for doing the work that you do, because you're arming people with the knowledge of what is actually happening. That's just so crucial.

0:44:08 Andrew: Thank you so much, Andrew.

0:44:11 Thomas: This show is brought to you by X Chair. You know, many of us spend more time every day in our office chair than in our cars or beds. That's absolutely true of me. That's why it's so important to invest in the right chair, to spend those hours with the right level of support and comfort to get the most productivity out of your day. Or I'll add this in, maybe just the most enjoyment too. Don't always have to be productive. I'm in my chair a lot, not always productive, but it does help you if you're not in pain to be protective. I'll say this, X Chair makes my time at my desk, not only more productive, it's also like my favorite place to sit in the house. If I could, if we're, when we're entertaining guests, if I could somehow just sit in my chair in my studio, and then maybe I'll like web conference in to the downstairs where the guests are. I may, I'll try to work that in because it really is the most comfy chair in the world.

0:44:57 Thomas: Not only does X Chair's patented dynamic variable lumbar or DVL offer the ultimate customized support, but my X chair can even give me a massage or heat up and cool down. And now, thanks to X Chair's new FS360 armrests, I can even adjust my armrest to the perfect position. All these unique X Chair features help the hours at my desk fly by in complete comfort. That's why I love my X Chair. X Chair prices will increase on July 11th, but you still have time to get an X Chair at current prices. So shop now and beat the price increase. Go to xchairoa.com now. That's the letter X, chair, OA, dot com now. Or call 1-844-4X-CHAIR. X Chair has a 30-day guarantee of complete comfort, and you can finance your purchase for as little as $30 a month. xchairoa.com.

0:45:51 Clip: The Bob Loblaw Law Blog. Wow. You, sir, are a mouthful.

0:45:56 Thomas: And we're joined by delightful Ace Associate, Morgan Stringer, always a pleasure to have you on the show. How you doing, Morgan?

0:46:04 Morgan: Doing well. Just been watching baseball and melting in the heat.

0:46:10 Andrew: The two time-honored ways of disconnecting from the Supreme Court, taking out a contract on every man, woman and child in America. So good, good work on that. Morgan, we wanted to have you on. There's a pop law claim that is circulating out there that Biden has banned cigarettes and Juuls and all tobacco products. What's going on?

0:46:33 Morgan: Yes, so I've been seeing a bunch of tweets that have been going around, particularly amongst, you know, the more further left, the DSA types. And I could see where you would think that, you know, if you've ever been to a DSA meeting, I could see where you'd think it was sponsored by Juul and American Spirit. So, you know, that take is not particularly surprising to me. But yeah, so I'm seeing a lot of takes saying, oh, you know, we can't get guns regulated, but yet he's going to ban Juuls and nicotine and cigarettes, which, you know, those aren't related. So it's a broad sweeping claim. So I thought, hmm, this is a rather bold claim that Biden is banning nicotine vapes or even cigarettes. So let me look into it. And once again, people are wrong and don't know what they're talking about. Out.

0:47:17 Thomas: No way. First I've heard of this phenomenon.

0:47:22 Morgan: Yeah, so basically I want to give some context here. So in 2000, our beloved Supreme Court that we all adore held five to four in FDA v. Brown and Williamson Tobacco Corporation, that the FDA could not regulate the tobacco industry under the Food, Drug and Cosmetic Act. So, in 2009, Congress passes a new act called the Tobacco Control Act. And a provision of this actually enabled the FDA with the Center for Tobacco Products, which is a new division within them, or new for the time, and said, okay, you can now regulate the content, marketing, and sale of tobacco products. The FDA has gone ahead and allowed vapes to be sold without formal FDA approval for a while, but you had to send in an application by September 9th, 2020. So switching lanes here, let's talk about Juul a little bit.

0:48:07 Morgan: So in 2015, Juul kicks off their big marketing campaign by using social media influencers at these launch parties. The hope is that people are going to see these Instagram influencers and such posting about Juul, and then some of the influencers' followers will try Juul and then their friends will try it and so on and so on.

0:48:24 Andrew: It's almost as if, and correct me if I'm wrong here, part of the major way in which cigarette manufacturers, tobacco, the tobacco industry, makes their money is by convincing young people to use their product. Am

0:48:39 Morgan: You are completely on the money because there were executives at Juul that were actually saying, Hey, this might actually not be a great idea for us long-term.

0:48:48 Thomas: Ooh, bad documents. We got some bad documents?

0:48:48 Andrew: Jesus

0:48:49 Morgan: Oh, we got so many bad documents. One employee even wrote, the party was a resounding success, at least in my mind, in terms of winning over the cool kids.

0:49:01 Morgan: Yeah, so not great. And the Massachusetts Attorney General's office has revealed that the company even bought ad space in Seventeen Magazine and Nickelodeon and even homework help sites. Yeah. And it could be maybe they outsourced the marketing or just went with a sort of, you know, the more automated targeted advertisement. But again, you are a tobacco company, you cannot act like you're a cool kid tech company. You can't just use influencer viral marketing. That's going to look very badly.

0:49:11 Andrew: Nickelodeon uh yeah

0:49:12 Thomas: Wow.

0:49:31 Thomas: Haven't we been all through this? Where they sit and they're like, man, I can't believe no one's ever thought of this.

0:49:35 Morgan: Yeah, exactly. You would think that they would know better. So Juul's downfall actually started earlier than this. So it actually started with the Trump administration. Maybe Barron got caught vaping or something. But but they actually had a good FDA commissioner, which is surprising. This was Dr. Scott Gottlieb. So he started from April 2017 to April 2019 when he resigned. And people were actually worried that because of his industry ties and him being conservative that he was not going to be a great FDA commissioner. But actually, he was qualified and did things to address health. He actually unveiled policies that strengthened oversight over homeopathic drugs and dietary supplements.

0:49:44 Andrew: Wow

0:50:14 Thomas: Wow.

0:50:14 Morgan: So, yeah, he actually was doing a lot of things that a lot of people would consider to be very progressive. So one of Dr. Gottlieb's concerns as FDA commissioner was the teen use of Juuls. So in April 2018, the FDA asked Juul, turn over your documents that are related to youth use, you know, how you market your products and everything about product safety. And there was actually a study, just a supplement on this, that found teens ages 15 to 17 are 16 times more likely to use Juuls than 25 to 34-year-olds.

0:50:14 Andrew: Wow.

0:50:45 Thomas: Wow,

0:50:46 Morgan: Yeah, the market share is mostly made up of people who technically are not even legally allowed to purchase those products. And also what he was concerned about was Juul pods evidently have twice the amount of nicotine as their major competitors. And a Juul pod has about the same nicotine level as an average pack of cigarettes. So a lot of consumers were not even really aware of how much nicotine they were consuming.

0:50:46 Thomas: Wow.

0:51:08 Andrew: Was not aware of that. So each one is the equivalent of a pack of cigarettes. Wow.

0:51:09 Thomas: Yeah, me neither.

0:51:12 Morgan: Yes. Yeah. Not each pot, but each pod. Yeah, each pod, yeah.

0:51:13 Andrew: Yeah. No, no, I don't want to, I don't, to do this scared-straight here. But, and again, I will say anecdotally, as a high school speech and debate coach, that pre-COVID, back when debate was in person, that certainly seemed to be, uh, even among, you know, academically minded high school kids, there's a hell of a lot of Juuls going on, that's my, uh, okay grandpa, okay boomer moment here, but but well,

0:51:42 Morgan: Yeah. And also occasionally vape as well. So, you know, I, not I

0:51:46 Thomas: Well, if someone as cool as Ace Associate Morgan Stringer does it? Maybe I need to do it.

0:51:50 Andrew: Yeah. Ooh,

0:51:51 Morgan: Know, oh no, no, I'm not influencing teens to smoke.

0:51:52 Andrew: It is. She is an influencer. So, ah, so cool. All So they turn over documents in April of 2021. And then what happens?

0:51:55 Thomas: Gosh, yeah, I saw her Insta. If

0:51:58 Morgan: No. The FDA isn't really convinced by this, right? So in September 2018, the FDA actually tells the five largest vape brands, including Juul, you have 60 days to tell us your plans of how you're going to decrease the use of your products by teens. If you do not comply within that 60 day limit, you we could just remove your flavored vape products from the market. So I suggest you act in accordance. So then what Juul does is they take down a bunch of social media posts and they take some other actions like they're like, oh, you know, we've committed these millions of dollars to helping teens no longer vape. But the FDA is still not really impressed, so later that month, the FDA makes an announced inspection of Juul Labs. They just show up and they seize thousands of pages of their marketing materials. After about a 60-day deadline passes, Juul then says, okay, okay, we are not going to accept any more retail orders for our cucumber, creme brulee, fruit, and cucumber flavors.

0:52:25 Thomas: I You know kids, what they really are into is cucumbers. They're

0:53:07 Andrew: Don't they still have like cherry and cotton candy and watermelon and like, I mean, just obvious kid flavors.

0:53:15 Morgan: So Juul is not making those. This is about Juul specifically. So there are other companies that do have that kind of, um, pod system, and there are companies that also will just sell, you the typical, like, vape juice, I guess is what it would be called, where you just refill it yourself. That's the kind that I have, but it is very, it's not, it doesn't look exactly like a USB stick, but it is about the size of a Juul, it's blowing oh

0:53:18 Andrew: Okay

0:53:40 Thomas: Also, you can use it to steal an election while you're in between.

0:53:43 Morgan: Yeah I could yeah Yeah. Yeah. I can help use, the Italian government.

0:53:44 Andrew: It's a ginger mint but yeah didn't

0:53:48 Morgan: Yes. So Juul also says, okay, we'll shut down our Instagram and Facebook accounts. And they do this to try to show the FDA, hey, we want to work with you guys. We actually hate it that teens are using our products. But then in December 2018, Altria Group, which is the new rebranded Philip Morris, of big tobacco fame, buys 35% of Juul. This is the largest tobacco company in the United States. So then I guess, you know, the FDA is already scrutinizing Juul, but then they decide, oh yeah, that doesn't be a great idea for us. Let's literally tie us together with big tobacco. So this also cannot be left out is the amount of litigation that's happening against Juul so there have been over 2,000 lawsuits filed against them. There are personal injury class action cases, individual ones, cases brought by attorneys general, and even a suit filed on behalf of Altria's investors against Altria.

0:53:47 Thomas: No,

0:54:39 Morgan: And this is the Altria suit. Basically what it says is that the investors are claiming that the company failed to perform due diligence before they spent $12.8 billion on a 35% stake in Juul when they should have known that Juul was under, you know, so basically FDA scrutiny, and they were not complying, and they were making a lot of big mistakes here.

0:54:54 Thomas: Wow.

0:55:01 Morgan: Especially

0:55:01 Andrew: That makes sense that if you have an industry, if you and the leading player in a particular industry that is under serious governmental scrutiny, that's not typically the time in which you want to buy a stake in that, that is yeah You would, because you would expect the market cap to diminish, right? In order if to continue to not be shut down as per that threat, you've got to accept that you're going to do less marketing to the teens. Then, you know, that reduces the overall value. That makes a lot of sense. Okay, so there's shareholder litigation. What's going on now that has kind of brought all that to a head?

0:55:16 Morgan: For that amount, yes.

0:55:38 Morgan: Okay, so basically what has happened is, so the Trump administration did have a, was, you know, taking these actions, but basically what we could see is Juul got off on the wrong foot with the FDA from the beginning. So basically what happened was the FDA has also already given approval to certain products, particularly with tobacco flavors. They're like, you know, we're not so wild on the fruit ones, but, but um, yeah, so basically what happened was the FDA gave a denial of marketing order that says, hey, you are not allowed to sell any Juul products anymore. Um, essentially, they were out here acting wild, and any remedial actions that you took were, sorry, too little, too late. And they were only done after we had been warning you for a while. So, but this does not mean that all Juuls are going away, vapes are banned. You know, this is one specific company, and also Juul is very likely to appeal this decision, and Juuls are likely to stay on the market during that appeal process, which likely will take at least around a year.

0:56:37 Andrew: Okay. So, the FDA order is not just an advertising order. It is a you have to stop selling this product because you're out of compliance with our particular regulations.

0:56:37 Morgan: Yeah yes yes that's what that is, so yeah. And this order only affects Juul. Now it is a warning to other vape companies. Absolutely. But again, this only is affecting Juul, they're not taking away. They're not going, cops are not busting down your door to take away your vape. So chill.

0:57:08 Andrew: And they're going to appeal. The order will be stayed pending appeal. That litigation is going to take years. So, your point of Joe Biden is taking away your Juul turns out to be wrong.

0:57:19 Morgan: Yes. And even then, like there's a million different, I mean, there's a million different companies making, you similar products. So those

0:57:25 Andrew: Now,

0:57:25 Thomas: Well, I've seen it worse. I've seen it because people just love to find ways to attack Joe Biden and Democrats and all that. I've see it as they combine both of those things which is wow, here's how dumb and evil Biden is. He's trying to stop vaping but he's only targeting this one company. What an idiot. It it's like oh man you're really you're double triple missing what's happening

0:57:27 Morgan: Not.

0:57:43 Morgan: Yeah. So that brings us, so that's actually a great transition into the nicotine cap. So basically, and this also goes back to Dr. Scott Gottlieb. Under Trump, in 2017, he announced the FDA would actually be taking steps to regulate nicotine levels in cigarettes, which actually has not been done. Assumed, yes, I Assumed, just thought that was a thing the government did, but no. So he actually says that they actually gave out an advance notice of proposed rulemaking, right? So this was, you know, in the Federal Register saying that they are going to take steps to make nicotine levels in cigarettes maximally, to make them minimally or non-addictive even. So listeners of the show will know that an ANPR is basically saying, hey, we want to make a rule because of X and here's why. So the FDA states that they want this rule to set the maximum amount of nicotine that can be in a cigarette because nicotine is what makes them addictive and tobacco harm usually occurs because the user is addicted to them, so, right, if you make them minimally addicting in the first place, then those results will decrease, so

0:58:01 Andrew: Really? Yeah, me too.

0:58:02 Thomas: I

0:58:46 Andrew: Just to be clear, they just promulgated that notice of proposed rulemaking. Right.

0:58:46 Morgan: No. This no this was in this was back under the trump administration this is in 2018 so this is gottlieb again

0:58:51 Andrew: Oh, oh, OK. All right. So 2018 notice of Proposed Rulemaking notice and comment period. Right? Everybody can then. Oh. Oh, cool.

0:58:58 Morgan: No well what happens is dr Dr. Gottlieb, he leaves in 2019. So nothing was done on this.

0:59:08 Morgan: So then recently, the Biden administration announced that they had plans to put a cap on nicotine to reduce the addictiveness of cigarettes. So they didn't even really put out an advance notice of proposed rule. This is actually from their unified agenda of regulatory and deregulatory actions from the spring. So, and this is in the Regulatory Information Service Center, which just tells you about the agendas of of the agency. So it's not even published in the federal register.

0:59:32 Andrew: So they haven't even done it yet. So what the Biden administration is going to have to do is take that 2018 Gottlieb proposal, maybe polish it up a little bit, maybe change some of it, and then promulgate it. And then that will begin the notice and comment period. And then eventually that could get turned into a rule that would affect some cigarette manufacturers down the line.

0:59:57 Morgan: Yes. And then also there is indication, because they say they want to curb use among teens, that right? They do indicate in the language they use cigarettes, but also certain finished tobacco products. So that indicates they could cap the amount that's in, you know, vape juices and vape pods. But they don't even use the language. They just say minimally addicting, they don't say non-addictive. Like they do in the advanced, the ANPR that was done by the Trump administration. But yes, and also if you look at the proposal, if you can read with your eyes, it says, I mean, you and everybody else in this country, it says that this, proposed rule, so just the proposed rule notice will not be published until May of 2023.

1:00:16 Andrew: Yeah all

1:00:26 Thomas: Can't sorry can't do that wow

1:00:42 Andrew: Right. Well, I- that is kind of the perfect capstone, Morgan, thank you so much for coming on to, uh, debunk two myths in one, every single aspect, every single component of which I have seen floating around, was 100% incorrect.

1:00:42 Thomas: Yeah proposal to rename Morgan's segment "The Internet Doesn't Know What the F It's Talking About." Today and the internet doesn't know what the f it's talking about, you know, Amber Heard or this rule or whatever, yeah yeah.

1:01:07 Morgan: Mean, honestly, I feel like I am a debunker, but it's driving me insane because I am begging people. I'm like, and this is journalists that are getting this wrong. I am like, do you all need to take language arts classes? Like, I do not understand. But yeah, I don't know. It's the midterms and people are, trying you to put all kinds of narratives out there.

1:01:22 Thomas: Clearly yep thanks for debunking that bunk

1:01:33 Morgan: Don't take your law and policy news from people on Twitter with cartoon, uh, profile pics. That's my advice all Thanks for having me on, guys.

1:01:38 Andrew: Excellent advice, as always. Thanks, Morgan.

1:01:42 Clip: Thank you for being a friend, yeah, travel down the road with me, say we started from the bottom now we're here girl,

1:01:51 Thomas: And now it's time to thank our Hall of Famers, our all-time greats at patreon.com/law. These folks, in addition to just being brilliant, also get to enjoy our lawed great hearings that we hopefully already put out if I was able to edit everything, think I need to edit. That was so much fun, and make sure that you get on the Patreon to be a part of that. Or, like I said, you can email us, but still, either way, it was a ton of fun. And I think we're on our second to last quintile. I believe the fourth quintile, so I'll start us off. Thank you too. Objection, the witness is a badger, stop calling him Uncle Frank, Nate Drex has to to call him dad, lawful copter, says America, where we want our children to breed but not read, sir not appearing in this film, I would like to think that this month we are all Conrad Michaels, feel free to start telling me that I will never be dethroned, civilpoliticsradio.com, Fridays at 7 p.m. Eastern on Valley Free Radio.

1:02:48 Thomas: Dasvidaniya, Conrad Nichols. Sorry, I don't know what that, but this actually does. Okay.

1:02:54 Andrew: Dasvidaniya, Comrade Michaels.

1:02:56 Thomas: Dasvidaniya Conrad Michaels. Sorry. I'm not a communist like Andrew. Sexual Anarchy. New band name called it. John Bilderbeck. Jennifer Kratch. Mike Hudson. Legal slut. I love that one. Stop Alavada Slander. Jeff Kalbach. It is not illegal to hope bad things happen to Samuel Alito. Yeah. Stephen Balticadei Sandoval. I've decided I should be be on the patron list if that is still the works. Nice. Oh, way to go with that one. That is fantastic.

1:03:24 Thomas: Greg Kramer and Philip Geyser, your turn, Andrew.

1:03:23 Andrew: That's an excellent One. And A big thank you to Andrea the arbitrary and capricious pain strumpet, gare set prong plus air and then sure plus set, yes, please read all of it. Well, hopefully I will do a better job at uh reading your name from here on out. Thank you for the uh phonetic explanation. Gare sherset. CIS opinion is the LGBTQ equivalent of mansplaining. The Patreon mobile app is unbelievably bad. Seriously, they must be taking the piss. Seriously though, live show in Minneapolis. Yeah, we've heard. Still waiting for a legendary multi-part long form deep dive on karaoke law. That's coming. Metacon 7. Jonathan Abscion.

Milo Meat Song wishes all meteors a happy crash into justice, Thomas's stupid little RV that is also perfectly legal. Yeah, so um, let's hope some, some happy meteors are around. Join your labor union, together we bargain, alone we beg. Felony trial for Sergeant Javier Escueda in retaliation for whistleblowing police misconduct begins in July. Disc graphic programmer, this Patreon name was relevant three weeks ago. Word origins.org has a new book, From Bar Flies to Bitcoin: How Words Map Our Modern Era, available on Amazon, is on, and thank you to My Witty Names Aren't Original and My Original Names Aren't Witty, and to False. Thank you all so much. That was the eighth decile, uh, the best decile, and uh,

1:04:33 Thomas: Totally.

1:04:54 Thomas: We always say that.

1:04:54 Andrew: Yeah.

1:04:56 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

1:05:02 Thomas: And now it's time for T3BE answer time. Curious if I was able to get this one right. Let's find out.

1:05:08 Andrew: And Right, Thomas, this was a con law question, and know, for as much as the Constitution still Exists, Yeah. State A requires all state park rangers to pass fitness test in order to be hired. The justification is that it requires intense physical activity. Primarily men apply for the job. Uh, last year 50 men applied for the job, uh, 10 women applied. Of those 60, half passed. Uh, but of those 30, all were men. So the women brought a lawsuit claiming the physical fitness test violated the Equal Protection Clause of the United States Constitution. Will they prevail in their lawsuit? You said no. You said went with a no because the state can show that the fitness test is substantially related to an important government interest. You had as a backup, see, yes, because the state cannot show that, that the fitness test is substantially related to an important government interest. So both of those were assuming that intermediate scrutiny applies here.

1:05:12 Thomas: When We had one of Those.

1:06:04 Andrew: I'm here to tell you, unfortunately, even before the Supreme Court, the actual answer is B. No, because there is a rational basis for the physical fitness test. The classification here, if

1:06:14 Thomas: I Thought specifically Gender discrimination would be One of those that, oh, it's Not, oh,

1:06:18 Andrew: The classification is made based on gender, then it invokes intermediate scrutiny. But here, women and men apply equally to the job. If they pass, they have the chance to be offered the job, no discriminatory intent, no facts on that, and the job involves intense physical activity. So under our existing precedents, rational basis review applies and they just

1:06:28 Thomas: Man, They Tricked Me, oh, Good Point Right Okay Even If Because I thought maybe that was what D D was, was bringing in the element of, if there is a discriminatory impact, then it would, would up your your game into a intermediate scrutiny, but not even that, even if it shows that it's it's completely uh gender discriminatory, but as long as it's not written that way, it's just written as like an objective test, it's juste rational basis no matter what. No?

1:07:05 Andrew: Showing an impact is not sufficient, even when you have intermediate scrutiny. Right. You have to show some level of a classification or an animal like it's it's never enough to just say, oh, the result of this is, you there are no women on the job. The result of This is.

1:07:27 Thomas: I I Know I was, I was arguing That the, the discriminatory impact would at least get you to that intermediate scrutiny, which would then make A the correct answer. You're saying that doesn't happen.

1:07:27 Andrew: Yeah. Sorry.

1:07:38 Andrew: Right.

1:07:38 Thomas: It just stays at...

1:07:38 Andrew: I'm saying it is never sufficient just to show because remember, D is yes, because the woman because the women can demonstrate a discriminatory impact. And my point is that just demonstrating the disparate impact is never sufficient in in a discrimination case.

1:07:48 Thomas: Yes. Yeah. It's never sufficient. But once again, I was asking if that doesn't get you even to an intermediate scrutiny level.

1:07:59 Andrew: That does not get you. That doesn't that doesn't then show you have to show that there is some kind of classification. Now, you could say, right.

1:08:07 Thomas: Yeah, the classification is the key, right?

1:08:09 Andrew: Yeah, that it that it becomes a de facto that they have argued that there is a de facto classification that the But A, right, fact pattern doesn't say that. And B, as you kind of delve into it, this fact pattern makes it hard because there's such a huge fail rate for the men as well.

1:08:15 Thomas: Yeah, that's what I was trying to get at.

1:08:26 Thomas: Yeah? Yeah.

1:08:27 Andrew: Right. And I believe that this case is going to be analogous to a bunch of military cases. Right. That say, oh, well, you know, like Officer Trey, you Know, just so happens that, these are, primarily men. But those kinds of programs have been typically found constitutional, even though they have a discriminatory impact. Yeah, no, it's a perfect time to have a pessimistic application while we're on the Constitution.

1:08:44 Thomas: Yeah... Rational basis, Damn it. It makes sense. It was

1:08:56 Andrew: Doesn't matter.

1:08:56 Thomas: A good, it was a good trick. Cause I went to the instantly like, Oh, that's gender. Yeah. That's going to make it be at least an intermediate scrutiny. But as you say, it's not actually.

1:08:58 Andrew: Yeah, it The key word there is classification. I will tell you, I suspect as we about as we are about to go to the answer that a lot of lawyers will have made the same conclusion that you did. And I can't say, you know, I read the answer before I had an opportunity to kind of take this one cold. Blame you making for that leap. It's a tough question.

1:09:24 Thomas: This is one you could screw up if you missed your morning coffee, maybe or something like maybe. All right. I'll take it. Dang. I thought I had this one. Oh, well, well let's find out who our big winner who who wasn't fooled, who's just such a good lawyer and has had so much of their morning coffee that they weren't fooled and they nailed this one. Who is it?

1:09:29 Andrew: Absolutely. Absolutely one I could screw up.

1:09:44 Andrew: Well, Thomas, since there were no winners in the actual law this week, I think we're to go with two winners for T3BE. First comes the correct answer. I think this was made prior to the Supreme Court handing down its decision in Dobbs on Friday. Day, uh, Jaeger Von Koss writes for T3BE, "I'm going with B on the basis that it shouldn't really matter whether it's the government's interest or that of a private employer, a level of fitness is required to successfully do the job, so I find the test rational." That is the correct answer. Great job.

For the post-Supreme Court world, how about we go with Peter Barnes, at Bitter Peter on Twitter, who writes, "The answer is F. F the Supreme Court, F Clarence Thomas, f Gorsuch, f Cavanaugh, f Amy, f Sam, f John, you evil bastards, I wish hell was real." Uh, can't argue with that. So two good winners here. Everyone give, uh, at Bitter Peter a follow, and for our actual winner, everyone give at at Jaeger Von Kass a follow, that is, at J-A-G-E-R-V-A‑N-K-A–A-S. And you have to share it, but congratulations to both of you for your never-ending fame and fortune and for being this week's winners on T3BE.

1:11:07 Thomas: And that's our show. Thanks so much for listening. It's hell out there, but you know, more fresh hell awaits and we need to battle back and be armed with the knowledge of how to do that. So we'll see you next time.

1:11:16 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.

1:11:50 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.