OA644: Andrew Seidel Is Here! But NOT To Yell About a New SCOTUS Disaster!

Transcript

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

0:01:18 Thomas: Hello and welcome to Opening Arguments. This is episode 644. I'm Thomas. That's Andrew number two. How's it going, Andrew Torrez?

0:01:27 Clip: I, despite being demoted or recognized as the second most important Andrew on this episode of Opening Arguments, I am my usual level of fantastic, not kicked up a notch because as folks learned during last week's T3BE and might have inferred from that introduction, we are once again chatting with our good friend, Andrew Seidel. Regarding his latest book, American Crusade, and I just couldn't be more excited about that.

0:01:46 Thomas: Oh, And one thing that he wanted to sneak in but we kind of forgot is if you go to his website, you can get a signed copy, which I will be getting my hands on. And that's AndrewLSeidel.com, that's where you can get your signed copy if you'd like to. I'm definitely doing that. But in the meantime, maybe you're not convinced yet. Well, listen to an amazing interview with Andrew Seidel, where we talk about his book, American Crusade. Let's get over to it.

0:02:22 Clip: Let's do it.

0:02:24 Thomas: And we're joined by nth guest, I don't even know at this point. I think you finally passed Chevy Chase and Steve Martin on Andrew Seidel, how you doing, Andrew?

0:02:33 Seidel: Hope so. I'm well, gentlemen. Thank you for having me on again.

0:02:36 Thomas: Our pleasure.

0:02:37 Andrew: You know, we usually have you on because it's funereal dirge time,

0:02:41 Seidel: Yeah,

0:02:39 Thomas: Yeah. No, that's a good Point. So, Hold you're on, and we're not going to be yelling about a decision that just happened that said that like teachers have to wear nun habits, know, as you they're teaching or anything like that. We haven't just

0:02:42 Andrew: Yeah, I

0:02:42 Seidel: Yeah, yep.

0:02:52 Andrew: Mean, not decisions that just happened.

0:02:54 Thomas: Happened. Yeah. So.

0:02:54 Seidel: Yeah. Yeah, that is technically correct with

0:02:58 Andrew: The best kind of correct. No, you're here, you know, flogging your book, which we love. I was able to preliminary get copy. And so I watched this evolve. The book is American Crusade. I have so many questions. But I what I didn't really expect on this This one was how close to a law school casebook this really is, right? It tells a narrative story. And, you know, just before the record, I was, as I was kind of bookmarking a couple passages to ask you about, Know, Thomas Kovacs, I said, like, oh, man, I had temporarily forgotten what a great writer Andrew is. You know, so you've got the like, and we'll get to it, the like because of Scalia's fuck you minorities. Right.

0:03:44 Thomas: Hmm.

0:03:44 Andrew: So. So it's still the like classic, pull no punches, Andrew Seidel. It is in a narrative form. But again, you it break down, you Know, probably 20 different cases in here. So, and you have Erwin Chemerinsky writing the foreword. So, I guess my question is,

0:03:44 Seidel: Yes.

0:04:05 Seidel: But wait.

0:04:05 Thomas: What does that mean for any?

0:04:06 Andrew: Okay,

0:04:06 Seidel: Just let's Just Wait. Wait, yeah. Let's Just let, let, and let Andrew, your tone there said something. But. But let's be explicit, yeah.

0:04:08 Andrew: Yeah.

0:04:12 Thomas: Yeah. Yeah. Pretend me and a bunch of people listening have no idea what that tone was or anything.

0:04:19 Andrew: I mean, alongside, uh, Lawrence Tribe, uh, they are the, the two, uh, foremost constitutional law experts, uh, in the country today, the fact that we have, uh, Dean Chemerinsky, uh, introducing, as you know, this as a a wonderful book, I, I'm a little bit jealous, like, like, if we could get him to come on the podcast, I I would have him on the show, right? And it would just be like.

0:04:41 Thomas: Does he have a cameo? We could probably just pay him to be like, you're listening to Opening Arguments. Clearly the best pod law podcast on the internet. All right. Let us know if this guy, I was going to say that would be a weird cameo to have. But if he does, we'll do it. We'll make that happen. Maybe for Andrew's birthday next year.

0:04:49 Andrew: There we go. It's a very, very niche. It's very niche cameo, but no, But look, in addition to my, complete here. I think it's an important imprimatur to have in the beginning, right? To have somebody who knows this law sort of forwards and backwards to say, no, Andrew's laid out a case for like why we should be scared about the status of First Amendment religion clause jurisprudence in this country. In a way that I think, I don't want to malign anyone else, but in a a way that I think uh everyone would agree, um, if you had botched in any way, if you were sloppy in anyway in describing any of the cases, um, Dean Chimerinsky would have been, you know, it would have been like we're gonna take a pass, you.

0:05:39 Thomas: Like, if I asked him to review one of my T3BE answers and be like, write a blurb for it, he'd probably be like, first off, who the hell are you and what is T3B, but we assume he knew all that.

0:05:43 Andrew: It's Probably Not Right. Right, so yeah, it, the question I was trying to set up, uh, was, um, is there a goal to have this, um, used in in law schools?

0:05:59 Seidel: I Certainly hope law students read it, um, and I hope lawyers read it too, you know, I mean, that the thing you said in in the intro there that made me the most excited is that I think sometimes we legal professionals, Thomas, I'm including you in the weed there. We get buried under legalese and civil procedure and judicial philosophies and levels of scrutiny and precedent. And sometimes I think we hide behind them.

0:06:02 Andrew: Uh-huh.

0:06:13 Thomas: Thank you. Yes. Prohawk.

0:06:14 Andrew: You yeah.

0:06:23 Thomas: Vichay. I hear you, you know, just just subpoena of, uh, latches.

0:06:26 Seidel: And those are words, yes. And often it's better, I think, to just shed those trappings and look at the core of the case, to get back

0:06:35 Thomas: I'm just going to keep going. Yeah.

0:06:37 Seidel: To basics, right? And to cut through all of the bullshit, really, that lawyers and judges have built up around their profession. And so that is one of the things that I tried to do in American Crusade. I really tried to kind of cut through all of that and make these cases accessible to everyone. I really did write this book for everyone so that everyone can understand the threat that we face, because we face a very real threat right now and see just how radical and dangerous the crusaders that I label in the book and the Supreme Court and its opinions truly are. I think we're really facing an unprecedented assault on the First Amendment right now that people really need to wake up and realize.

0:07:24 Thomas: I think a real challenge these days, it seems to me is because everything's so polarized, there's just a tendency to fit everything into. So if you and I, you know, equal legal scholars as we are, railing against like what's happening on this court and what they're doing, I think it's so easy for, I don't know, the media and I guess people in General, the wider audience to just be like, well, yeah, you know, liberals hate what they're doing. Conservatives like what they're doing. It's just normal partisan politics stuff. But what I've learned you from and Andrew Torres is just how like unprecedented this stuff is, it's not just norm, like, politics as normal, red team blue team stuff. How do you go about trying to to break through that pressure of like everybody just fitting this into like the partisan lens?

0:07:45 Seidel: Yeah, it's a really something I Struggled with. And part of the the problem is that we as a society, and especially the media, which we treat cases as one-offs, right, as it is just about this particular case, um, and we tend to prize as the media the balance over truth, and I think there's an, that's especially a trap that is fallen into when you're talking about the law, which relies on two sides that are adverse to each other really kind of fighting it out. And I think both of those are mistaken somewhat. The cases that I discuss here, the attempt to turn religious freedom from a protection into a weapon to impose religion on others is part of a decades-long campaign. And the cases that I relate and the stories I I tell about those cases in American Crusade, are part of a much larger campaign.

0:08:13 Thomas: Right.

0:09:08 Seidel: And I do not think it's possible to understand what's happening in this country, from our politics, to our culture, to our law, to Our Courts, without understanding this overarching assault. And, I mean, you guys know this, right? Like, I've lived these cases. This fight's been my whole career, you know, I've litigated some of them, I briefed others. I've been on the front lines defending our country from this assault. And so what I try to do in American Crusade is tell the stories behind the Supreme Court cases that make up this, to really draw back the curtain on that assault. When I, I think that the place where I differ, Thomas, to get to your question is like, when I say, I tell the truth about those cases. And whenI say that, I mean, I didn't do what a lot of popular law books do, which is just kind of repeat the facts as stated by the Supreme Supreme Court. If you do that, if you do that with this, yeah, you really, you can't.

0:09:50 Thomas: Yeah. You can't anymore Yeah. Yeah.

0:09:54 Andrew: Well, really taught us that in a vivid way. Particularly, you know, the Bremerton case, it's hard, you know, one of the things that gives you credibility is, you when you say, hey, you you should triple check when you're reading the fact fact section in these religious freedom cases, because the Supreme Court is just, you kind of making up the facts to make it fit the law. And, you and again, even being on your side, you sort of do a, like, all right, Andrew, I'm sure. And Then along comes, you know, Bremerton, where Sonia Sotomayor is going to be like, all right, I've brought photographs, like, um, here They Are In The Descent, uh, and, you know, it, I mean, that was, I, uh, hated to see it in the dissent, but it was a pretty good Validation of, um, what you'd been saying all along, which, which we saw in, you just little, uh, little omissions that each one might be be defensible in the abstract. So, for example, main, school funding cases,

0:09:55 Seidel: Yeah.

0:09:55 Thomas: Yeah.

0:10:25 Seidel: No. Here are the receipts. I mean, let me publish them. Yeah.

0:10:59 Seidel: Yeah,

0:11:00 Andrew: Right? Like, right, Carson, yeah, that's right. In that case, right. The facts are not, it's not as egregious. But again, the facts are skewed in such a way that, you you're led down a path that takes you closer to the result the the court wants to reach. And really disturbing to be like gaslit by the Supreme Court, right? I was not taught that that happened in law school. And moreover, for right, all of, you know, I was in at the ground floor on critical legal studies and critical race theory, like that would have been a radical claim on the Harvard Law Campus in the late 1990s. Right. That the Supreme Court was in a branch of law, deliberately altering the text in such a way as to create a divergence with reality.

0:11:00 Seidel: Carson versus Macon. Yeah it really is.

0:11:50 Thomas: You Know, let me ask you guys though, because as much as that is obviously egregious and I can't believe it, and we're all in disbelief about it. Is it almost like ultimately goes against the conservative's interest? Because if you, you you just totally change the facts of a case to get your outcome. Sure. It means that one case will go that way. But then doesn't it mean you set a precedent not for the thing you're trying to accomplish, but for a fake set of facts?

0:11:50 Andrew: Yeah.

0:12:04 Seidel: Yeah and that's something that the the groups like Americans United for Separation of Church and State where I work right now know, are pushing, right? Because, okay, well, like, that case is not about a coach imposing prayer on other people's kids. So that means the coercion under the law is still unacceptable, theoretically. So I mean, that's certainly a strategy moving forward. I mean the two other things that I want to say are the, you know, one, this anti-reality, that the fact that the Supreme Supreme Court is now the court of alternative facts, right? That is a theme that I kind of highlight throughout American Crusade. And it's almost one of the, I didn't realize this till the other day when I was doing a book talk, but it's a biographical part of this book because I remember, and I tell the story in the introduction, the first time I saw that happen.

0:12:20 Thomas: Mm-hmm.

0:13:06 Seidel: And it was in a case that I'd been working really closely on. It was the town of Greece versus Galloway case. It Was, you I knew the facts inside and out. And this is a case about government prayer at the town of Greece, New York, and they've had only Christian prayers. And government prayer should be unconstitutional. I mean, there's no doubt about it. But there's a bad 1983 case called...

0:13:25 Thomas: Seidel coming in with a controversial hot takes in this day and age? Yeah.

0:13:31 Seidel: There's A bad 1983 decision upholding it, Marsh versus Chambers. And one of the things that courts then looked at is, well, okay, who's the prayer for? Because if it's just for the legislators, then we're going to let it happen. And this is like a fiction they've created around it. And one of the reasons the town of Greece case was so good was that it was very clear that the prayers were not for the legislators.

In fact, what you had at the city council was like a typical setup, right? You had the dais where all the city counselors sat, and then you had an audience and then like a speaker's podium that the audience could walk up to to address the council. And so they would have the prayer giver come up to that podium, which faces the council. And then that prayer giver would turn the podium around and face it towards the audience. I mean, like you could not get a more clear instance, like they are announcing that this prayer is for the audience, the citizens who are there to learn about their schools and about their roads and, you know, all the important stuff that citizens need to hear about.

So they're imposing prayer on other people using their government power. And the conservative majority on the Supreme Court, led by Kennedy in this case, just changed that fact. They flat out changed it in just one sentence. These prayers are clearly for the council. And that is a lie. And it was a small one at the time, but it's a total abnegation of reality. And it Was a moment for me where it was kind of like the first domino that fell for me.

0:14:21 Andrew: Right. Yeah. Yeah,

0:15:00 Seidel: And this is a theme throughout out American Crusade. And you see this in other cases in this arena. And we've talked about a lot of them on your show. There are cases where the case is absolutely moot and the court should not be hearing it, where nobody has standing and they should not be hearing, where the parties agree on the outcome. No adversity in the case and still the Supreme Court is deciding these cases because this court wants to decide these cases.

0:15:15 Thomas: Yeah.

0:15:26 Seidel: And So that's one thing. There is this overarching arching desire from these crusaders, both the the groups that are bringing the cases and then the crusaders on the court. And that's also evident in the Carson v. Makin case, Andrew, you know, because this is something that I did not hear discussed anywhere, but is, I have in the update for American Crusade, which is available on my website for anybody who has bought the book, the challenge in Carson versus Makin, um, there's... there's basically there's a non-sectarian requirement in Maine statute. Basically, like if we're going to give funds to families to pay for private education, it has to be a non-sectarian education. And the reason for that is like we can't tax citizens and then turn around and give that money for religious education and indoctrination.

0:15:26 Andrew: I mean, this is these are I hate to interject and I apologize.

0:16:10 Seidel: No, go ahead.

0:16:12 Andrew: That particularly when we are talking about a Supreme Court that uh purports to have an originalist jurisprudence, that these are core, this is not an example of like, hey, what would the founding fathers think about an AR-15, right? Which is a valid open question, right?

0:16:19 Seidel: Yeah.

0:16:30 Thomas: This isn't even like a penumbra of rights thing, this is just like, no, this is obvious, this

0:16:33 Seidel: No, it's

0:16:32 Andrew: No, these are topics, yeah, that were discussed and put forward as examples. And the debate was, right, Hamilton was of the position that, like, look, if it's not an enumerated power for Congress, I don't see why we should have a First Amendment. So But the debate wasn't over, do we need to to have a Bill of Rights, and what should it say? And every writing of the core, I want to be clear about this, and Andrew, you have done a tremendous amount of work, so let me make sure I'm not overstating it. There are a handful of folks who signed on to, for example, the Declaration of Independence, who were religious to varying degrees. There was the Ben Franklin proposed that Congress open with a prayer, and then everyone was just like, shut up, Ben.

0:16:35 Seidel: As clear as you can get.

0:16:36 Thomas: Is the umbra of rights.

0:17:22 Thomas: Well,

0:17:23 Andrew: So there are a couple of those like religious moments, but but the the framers of the Constitution, the people who did the heavy lifting of the drafting of the clause of the First Amendment and the rest of the Constitution, to a man, and yes, sadly, they were all men, but to a man, like, posed these kinds of questions as sort the outer obvious delimitations of the powers of government, right? Like, obviously, you cannot take general tax dollars and give those to a church, right. And these, these were settled questions in the 18th century.

0:17:52 Seidel: Yeah, yeah. I mean, they're written into to constitutions in 1776, like New Jersey and Virginia. And the reason is that that protects the religious freedom of everybody. Because if the government can take money out of your pocket and then give it to a religion that you don't agree with, or that says you're going to hell because you don' agree with it, that violates your religious freedom. This was very clear to the founder. Thomas Jefferson said that doing that was, quote, sinful and tyrannical.

0:17:57 Andrew: Yep. Yeah. Right.

0:18:24 Seidel: Not mincing words. And this is what the main case was about and what the Supreme Court, the founding principle that these textualists and originalists turn their back on. But the crazy thing about this case that I had not heard discussed anywhere that I do get into in the update is that the crusaders brought this exact same challenge to this exact, same non-sectarian requirement four times in the previous two and a half decades and four times they lost.

0:18:52 Andrew: Yeah.

0:18:52 Seidel: And twice they asked the Supreme court to review the case, and both times the court declined. This was well-settled law, but the Supreme Court, the personnel on the Supreme court changed, right? That was all before Leonard Leo and Donald Trump and Mitch McConnell packed the court.

0:19:03 Andrew: Yep. And, And again, remember, you had primed the pump with a judicial philosophy that Clarence Thomas has now made explicit. He has been the most transparent of the justices as to what they're doing. But when you have a judicial philosophy that says no developments over time matter, the only thing that matters is what Clarence Thomas thinks in his head the founding fathers would have meant in 1787, or ex-drafter of why statute would have have meant at the time that it was drafted, well, that is an open invitation to start challenging long-standing laws that that have been, uh, are so. D.C. versus Heller is such an obvious example, right? You had a ban on handguns throughout the District of Columbia for 30 plus years, right? Everybody knew it, everybody complied. Two generations grew up with the handgun ban, right? These are just reopening because that passage of time, literally that factor is set to zero if ascribe to that kind of originalist mindset. Mindset.

0:19:50 Seidel: I

0:20:12 Thomas: I was gonna say, Seidel, you, you, you use the phrase "settled law." Does that exist anymore? Does that matter? Are

0:20:18 Seidel: Mean, honestly, I don't know. I think the deeper problem and what you're getting at with that question, Thomas, is do we have the rule of law anymore. Not know that we can say that we do, especially in this arena. I believe that that is an open and hard question to answer nowadays. Yeah, I mean, let's just plainly, the Supreme Court has been politicized. It's been pact asymmetrically, the Democrats ceded this crown to the extreme Christian wing of the Republican Party. The new guiding principle of this newly packed Supreme Court is not the Constitution or law, but simply this, Christianity wins.

0:21:00 Seidel: And look, sometimes other religions are going to win, but if you are betting on the outcome of any case, just ignore the law and and bet on conservative Christianity. And that's, I mean, that's literally what I wrote in American Crusade.

0:20:39 Andrew: Yeah. Yeah, yeah.

0:21:10 Andrew: And it is. And I would I would say I think that that is a subset of, you know, we have flogged we the the Shadow Docket brief that was most recently updated in the New York Pistol and Rifle Association case. Case. I know you followed that one. But again, if the case breaks down on conservative political outcomes, bet on the conservative political outcome,

0:21:33 Thomas: You sure I shouldn't Bet on the Washington Generals, though?

0:21:36 Andrew: Yeah, the

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0:25:22 Andrew: Chapter three is called Drawing Lines. And in it, you do what any responsible student of jurisprudence would have done at any time in our nation's history? Which is to say, anybody who's not an originalist, you would have said, hey, The guiding principle is, if the other side is saying this is a question of religious freedom, how would we, given history and tradition and prior cases and the animating forces underlying the First Amendment and all of that, how Would we articulate kind of that value of what freedom of religion really is? I And think you just do such a beautiful job with this in a way. It's hard for me to put myself in the shoes of somebody who's a religious conservative.

0:26:12 Andrew: But in a ways that I would think we were talking to each other, if we weren't two Americas divided down this line, would have some ability to reach across the aisle. Would have some, you ability to be met with a yeah, okay, that makes sense, uh, you know, from Uncle Frank. So with that setup, um, don't you describe for for the listeners, like, what religious freedom is, like, where, where those three lines are. Yeah.

0:26:32 Seidel: Yeah. You know, I'm glad to hear you say that you think it'll land because this is partly a product of conversations I've had, in addition to the tons of legal research and writing, obviously, I've done. But I think the crusaders have deliberately confused many Americans about where we draw those lines. I think this is intentional. Because, right, historically and legally, these are actually not hard questions.

0:26:53 Thomas: Yeah.

0:26:54 Seidel: And that's like one of the things that's crazy to me. These are actually pretty easy to answer. Now, I mentioned earlier that I shunned jargon. So try to stick with me me here, everybody. The lines in the book, I creatively refer to as lines number one, lines number two, and lines number three. Okay. I know. It's rough. Okay, so but the first is we distinguish between belief and action, right? Your right to believe is absolute. Your right to act on that belief is not. And I opened the book with a number of true stories about drivers drivers, letting Jesus take the wheel, right? I mean, like they actually let go and let that happen. Now, um, they're free to believe that Jesus is, you know, a bit of a backseat driver, but the civil law can step in and say, no, that's not okay, right. We can find them. We can take away their license, maybe even send them to jail if, uh, you know, they, they really hurt somebody, because their actions can be limited by the civil law.

0:27:07 Andrew: There's

0:27:32 Thomas: Oh, hold on. Do they really believe Jesus is a backseat driver? So they believe he's just going to be like. Well, you're falling in a little close, like in a passive aggressive way.

0:27:58 Seidel: I mean, I guess he's not, I guess I don't know. Yeah. Yeah. I

0:28:04 Thomas: I think they believe He's a front seat driver. Like He's, He's the driver.

0:28:07 Seidel: Mean, that's true. Yes, yes, and I mean, and the stories that were haunting, like, and I included some detail, and like, they really, it's, it's crazy, uh, my favorite is the Florida guy who said that, I, it was, I can't remember, that was God or Jesus, uh, made him the smartest man in the world, and that was why he had to drive his Lamborghini off the pier in Florida and drive it into 20 feet of water, right? So anyway, so okay, but belief is unlimited, action is clearly limited, which brings us to the second line. Okay, well, if action is limited, when is it okay for the government to step in? And the answer here is also very simple, where the rights of other people begin, right? There's the old legal adage, your right to swing your fist ends where the other person's nose begin. Well, your right to swing your religious freedom ends where the rights of of other people begin, right? Your right to exercise your religion ends at other people's rights. So religion is not and has never, ever been a license to harm others or infringe their rights in any way.

0:28:12 Thomas: Yeah. Yeah.

0:29:04 Seidel: And that is one of the things that we are seeing turned on its head. We are seeing religious freedom become an absolute right for action when it comes to conservative Christians, regardless of the impact on other people'S rights. And then line number Number three is pretty easy, too, and it's the line between state and church. And, you know, even in this line, I've tried to reconceptualize it in a couple different ways in the book. You know, our government has no religion to exercise and government officials cannot abuse government power and resources to promote their personal religion. So, you know, that American crusade lays out those lines and then it show how shows how the court is warping, not just the lines, but also the law and the facts and reality to rewrite them.

0:29:49 Andrew: A There's a lot packed into that, but but no, I, I think, and to me, those three lines align so nicely with the now defunct Lemon test in Lemon versus Kurtzman, um, it just seems like we had, you, I want to do the, like, end of Planet of the Apes lament, you know, like, we, we had a workable system and we threw it all away, um.

0:29:51 Seidel: There it is.

0:30:12 Seidel: Yeah.

0:30:12 Andrew: But you know, we kind of did, right? We had almost the textbook definition of compromise, right? Like, everybody, everybody hated the Lemon test in the 1980s. Liberals, right? Hated it, conservatives hated it, religious people hated it, atheists, we're not thrilled about it. And you know, in a pluralistic society, like, maybe that's an indication you've gotten something right. But you, we've, we've definitely lost. I should have asked you this as a, as a setup question, not the least of which is because you emailed me and told me to make sure I ask you this is a question, but I do.

0:30:14 Seidel: Yeah.

0:30:40 Thomas: Hey, you've got the cheat codes over there with the questions you should ask.

0:30:43 Seidel: Yeah.

0:30:45 Andrew: But folks listening to the show have a long history with you as well. But I define what you mean by crusaders both kind of generally in the public and also on the court.

0:30:56 Seidel: Religious freedom has long been this shield, right? It's been this hallowed protection against government overreach. It's the minority's protection against the tyranny of the majority. It's it's a right that's guaranteed by a strong separation of church and state, and importantly, religious freedom has been a right that we possess equally, but not anymore. And that is because there is a well-funded, powerful network of Christian nationalist organizations and judges. I mean, we're talking about a billion-dollar shadow network here that is working to weaponize the First Amendment, and it's seeking to turn that protection of religious freedom freedom into a weapon of supremacy and privilege for the few. And so that network of well-funded activist groups, I call them crusaders, together with the conservative justices on the Supreme Court have been waging this crusade to weaponize religious freedom.

0:31:49 Seidel: And when I say that, I mean they are litigating the legal meaning of religious freedom as a constitutional right in case after after case, after case. And in the process, they are redefining that protection. They're perverting its meaning. So, you know, I mean, we've talked about the cases on your show many times. You know, they're superficially about like a Christian cross and veterans or playgrounds and skinned knees or private school vouchers or bakeries and gay weddings. But really, they are about privilege and supremacy, literally about privileging the right kind of conservative Christian over everyone else. And so the groups are sort of this Orwellian word salad, you know, the American Center for Law and Justice, Liberty Council, First Liberty Institute. And I, in each of the chapters, oh yeah, yeah, Alliance Defending Freedom. Yeah, it's great.

0:32:29 Andrew: Americans americans defending freedom alliance

0:32:37 Thomas: Oh, I like freedom. I would join an alliance to defend freedom. That sounds fantastic.

0:32:42 Seidel: Beckett Fund is is another one they're probably the the least or willing yeah I

0:32:47 Thomas: I love Beckett's. No, that doesn't. Yeah.

0:32:49 Andrew: Sam sam beckett from quantum leap like that was great

0:32:51 Thomas: Yeah, no

0:32:53 Seidel: So in each of the chapters about one of these cases I I explain explain how these crusaders crop up, where they came from, how they were founded. And it's not just superficial... I mean, these are very clearly...

0:33:06 Thomas: So it's not just Alito or

0:33:08 Seidel: It's not just Alito. It's not just alito. I mean the groups have a lot of similarities. They often have early ties to James Dobson, for instance, who's this anti-gay white Christian with early racist and eugenics leanings. A lot of them were started with Coke seed money. Cash infusions from the DeVos empire are pretty typical. The network really is, it's too complex and vast to cover in a book like this. So I gave people other resources and you start very soon to feel like the dude in his basement with the red yarn, like

0:33:08 Thomas: Thomas.

0:33:42 Thomas: Yeah.

0:33:43 Seidel: Trying to map this out. But I mean, it really is an amazingly well-funded network. And it's coordinated from the top down, which is another crucial piece, right? There's nothing grassroots about this.

0:33:55 Thomas: I want to ask. You know, we've had you on, I don't know, a thousand billion times. I don't know. It's episode six, like 44. So we probably had you at least 600 times. No, but we've discussed a lot of these cases. Is we've collectively, I think if someone has only ever heard you on this show, they would probably think you were a disheveled, depressed, incredibly angry person, just because that's usually what's going on when we have you on. And we've covered a lot of these cases, you know, Masterpiece, Cake Shop, the one with a 40-foot cross that somehow isn't religious at all, and some other ones. I'm wondering, is there anything for the keen OA listeners that you might want to tease? Buy the book, everybody. I don't want you to give away the whole book or anything, but anything that you, can think of that you haven't really given the OA audience before, like a kind of a, maybe a case you haven'T covered or an element that that, they won'T have heard.

0:34:14 Seidel: Fair enough.

0:34:28 Seidel: Yeah.

0:34:43 Seidel: Yeah, actually, there's some stuff in there that I think OA listeners in particular will really love because, I mean, have an audience that cares about this stuff and loves to do the deep dives and get into some of the history.

So, I you know, the cases that I really focus on are the last decade of cases from this, this Supreme court, from the time when they essentially, the court called for this crusade, which I outlined that call the day whose vault, um, and then focus on it. But I also, I go back in, into our history to show how far they've warped things.

So you get deep dives on the employment division versus Smith case, which is way more fascinating than most people realize and was like one of my favorite chapters to write. And it's, it's a hugely messy case and chapter. For those folks who are like the OG OA crowd, like the, we get into the lowering the the Lukumi bar pretty deep. Yeah. So the Lukuni Babalu I case, uh, the city of Hialeah, um, which was, you know, one of the, one Of the early religious freedom cases, um and the first to really say, um the government cannot be hostile to a religion in its actions. And Um you actually see that hostility really manifest and it's much worse than I think a lot of people realize.

0:35:37 Thomas: Yeah, yeah. I

0:36:03 Seidel: Because it was a Santeria church that did, that did animal sacrifice. And there's so much going on in that case. It reads like a Carl Hiaasen novel, there's like so many crazy backstories and things. So I, I, I get into all of that and there's this really rich history that it really and also just shows throughout how far we've fallen from what was intended and how easy it is to accidentally fall. Like in the Smith case, the court thinks it's kind of doing this right thing. And by and large, it is, but it does it in a way that you mentioned Scalia's line, I'll save it for you. Or the Religious Freedom Restoration Act, which was bred of good intentions and a backlash against the Smith case, but is restoring a standard that is based on Christian supremacy if you dig into the cases that really underlie that, which I don't think anybody would have intended. It was trying to do the exact opposite. So I

0:36:16 Andrew: I

0:37:02 Seidel: Think there's a lot of really fascinating legal history and a lot of really interesting deep dives in this case for the OA listener in particular. It's one of the reasons I really wanted to come on the show and lot of it is, I thought back a lot to the appearances that I had on the show in this, when I was writing this book, quite a few times.

0:37:11 Thomas: Going prime audience for this book.

0:37:22 Thomas: Awesome.

0:37:22 Andrew: I'm glad you set that up, Thomas, because I was going to transition to it's it's chapter eight, which is it was never about the drugs in which is the lengthy discussion of the Employment Division versus Smith case, which, um, is really fantastic. And then is immediately followed, right? Chapter nine in the book is the religious freedom restoration act, right. Like the, the, this is the logical consequence because, because I feel like telling that story, right, illustrates really when you have a, a court that, that is, uh, so suffused with Christian privilege that, is that looking to rule in favor of Christians, that you realize, right, how much damage that does being the majority religion in the hands of a court that, you know, really is charged, you know—Carolene Products footnote four, right?

0:38:17 Andrew: Like, the reason we have constitutional rights is to protect the minorities at the hands OF the majority and not vice versa, and RFRA is is a perfect illustration of that, right? Like the second that it looked as though the Supreme Court might do something which would require Christians to play by the rules too. You know, we got a bipartisan backlash for one of the most sweeping pieces of legislation signed into law by a Democratic president, in the last 50 years. You're on, but I want to read heed just a little bit chapter eight, because I just think it is so incredibly well-written, and this gives you a sense.

This begins on the second page of chapter eight. I've kind of set it up. And Andrew, you write, religions love drugs. Wine is the blood of Christ for some. Rastafarians smoke marijuana to elevate their consciousness. Aztecs ate mushrooms, and Incas as chewed coca leaves. And some Native Americans take peyote. That peyota right became the focus of this Supreme Court case. But the case was never really about religion or the right. It was about unemployment benefits. More specifically, whether a private drug counseling organization can fire drug counselors who do drugs in violation of the organization's policy. Obviously it can. But does religious freedom require the state to pay unemployment benefits to private drug counselors

0:38:57 Seidel: You. Yeah.

0:39:41 Andrew: That uncontroversial proposition, drug counselors can't do drugs and keep their jobs, lay at the heart of the Supreme Court case but was lost in Scalia's opinion, the backlash, and the new law, referring to RFRA, that backlash spawned. Um, you see why I seized in on that paragraph. Um, I think it's, it's really illustrative of, of what you do, which is going back and kind of putting, you this is a, 32 year old case now.

And again, all but overruled thanks to, uh, the Supreme court's last term. Um. And, and to put kind of fresh eyes on it and, and say, you here again, are, you know, the themes that were lost, like, and you quote the colloquy between Oregon's Attorney General Justice Harry Blackmun, who, you kind of feel, you know, was sort of a man out of time in evaluating this decision. Again, you know ask the question, why were these people fired? They were fired because they were drug counselors at a drug and alcohol treatment center. And Blackmun says, so they were fired Because they violated the employer's policy. Oregon AG. That's right. Blackman. They were not fired because the use of peyote was illegal. Oregon, that's correct. Correct. I can hear the longing in in what you've written for, you know, a time in which the court might actually be evaluating this case on the merits rather than, you by trying to advance a political football.

0:41:02 Seidel: And it was one of the things that was, first of all, listening to old oral arguments was a lot of fun. But it's One of the things there was frustrating about the case, that writing the whole book, was that, again, that the answers to these questions are actually so simple. And you can, if you go back and read some of the court opinions, even before the court was, was captured and, you know, deliberately warping our, our reality, it, there's this fear that runs through the opinions of not of getting it wrong, but of deciding the case in a way that will be politically unpopular. And it's, it's this taboo that we have as a society against any sort of, of insult or criticism against religion, that is manifesting itself in these opinions. And it's just so sad to read, because if they could just get past that and say, "No, we're actually upholding a higher ideal.

0:41:06 Andrew: Oh, yeah.

0:41:59 Seidel: We're upholding the constitution. We are upholding with the idea that we, the people are all equal and that the separation of church and state actually levels the playing field and and makes us all equal, and by the way, is like crucial to the functioning of our democracy. It's no coincidence that as the wall of separation crumbles, we're seeing the last threads of American democracy fraying at the same time. That was one of the things I think that was, it was actually, it wasn't even frustrating. It was just, it was sad, because could they have, if they had just stood up and done the right thing earlier, and stood on the legal principles that are so very clear, we wouldn't be where we are today.

0:42:35 Andrew: Well, said. Yeah.

0:42:35 Thomas: Know, you mentioned RFRA was passed under, with a Democratic president. I also remember a lot of these decisions that you came on and broke down, or that Andrew Torres over here has broken down for us, liberals, thing liberals joined in the majority on the court, and I'm wondering, at what level, you know, of culpability do you think liberals on the Court have had, or, or I guess liberal politicians, I think there has been a point now where it's been, finally, "Oh, no, this is insane, we've gone too far," and it seems like, the you know, how many liberals do we have on the court now? Like one and a half. I don't know. It's so, it's so few. Three. They, it seems like now they wouldn't really join in on these things because it's gone so far. But I, am is that accurate, that that they've kind of been complicit in a little bit of this?

0:43:17 Seidel: It, it is. And I, I get it. I do hypothesize a little bit here and there about that. I tried not to get too bogged down by it. Um, I, you know, the, the general wisdom is like, okay, they're trying to limit the damage. Stop, like stem, stop the bleeding.

0:43:24 Thomas: Yeah. Mm hmm. I'm receptive to that argument, especially in ones where it's like it was going to go that way anyway. Maybe they're trying to do some some bargaining in terms of decisions or something.

0:43:31 Seidel: Yeah yeah. This was I really, um, Andrew, Andrew, I think you and I were even texting about it. The masterpiece cake shop decision came down right around the time of the Muslim ban. And when the masterpiece cake shop decision came down, what the court found was that the Colorado Civil Rights Commission had been hostile to the bakery's religion. And so it was a punt on the two major questions in the case. Do you have a religious freedom or free speech right to exempt yourself from civil rights laws. So the court punted on that question. They're going to get to it this term. But they said the civil rights commissioners, and I interviewed two of the commissioners for this book, by the way, and their stories are amazing, were hostile to the bakery's religion. And therefore, the whole process was tainted. And we're going give the bakery, which clearly discriminated against these folks, a get out of jail free card on this one.

0:43:45 Andrew: Yeah.

0:44:32 Thomas: And I'm glad the highest court of the land is deciding that one dude's feelings were hurt a little bit and that's what they're occupying their time with

0:44:37 Seidel: Yeah. Yeah.

0:44:37 Andrew: No. Let's be clear. And I think that this really ties nicely into your question earlier, Thomas, on, is there a flip side to the gaslighting, right? Right. Like, because if you if you've misrepresented the facts, well, you know, at least now your opinion is confined to those alternative facts. Masterpiece Cake, the Masterpiece Cake Shop shows, I think, the way in which that is harmful because the holding of the case is now it becomes invalid if you have an administrative process like the Civil Rights Commission that is hostile to your religion. Okay. Like, maybe I can live with that as an abstract legal principle. But then when it comes time to apply the law to the facts, you look at the actual facts in Master P's Cake Shop, and the hostility they're talking about are asking questions of religious identity in the hearing,

0:45:16 Thomas: Yeah.

0:45:35 Seidel: Quoting a New Mexico Supreme Court opinion. I mean, completely manufactured hostility, just just made up hostility. I mean like and to get to your question, Thomas, that was a seven to two opinion. So you had two of the liberals join, RBG and Sotomayor dissented. And we were all thinking, OK, well, the Muslim ban cases do it down any day now. And they hung their hat on hostility toward religion. And so they must have traded some votes to strike down the Muslim ban on the same grounds because like Donald Trump was pretty goddamn clear about his hostility towards Muslims when he passed the various iteration.

0:45:36 Andrew: Right. Yeah. Yeah.

0:45:47 Thomas: Yeah. Yeah. He wasn't just quoting a New Mexico Supreme Court or whatever he said the hostility was in this one

0:46:16 Seidel: Yeah, it was it was pretty raw. It was pretty open. And no, we didn't get that. We didn't get that opinion. The court upheld the Muslim ban just just a few weeks later. So it really is, it's difficult to understand that. But the litany of cases from the last decade, be they 5 to 4 or 7 to 2, or there's one unanimous opinion, are actually haunting. And they start off in 2011 with 5-4, and then they kind of, you can see maybe the liberals start to say, all right, we kind of do something about this. And then in 17 and 18, they start to maybe do these 7 to 2 opinions up through 19. And then it's all back to 5 to 4. I mean, it's harrowing, right? 2011, the court allowed a voucher program to send taxpayer funds to religious schools by denying citizens the ability to challenge that program, 5 to 4.

0:47:05 Seidel: In 2012, it said that religious organizations can legally discriminate when hiring clergy and then weaponize that against employees with no religious duties. In 2014, it's said that Religious Freedom can override the rights of other citizens, five to four, and upheld the Christian-only prayers that the town of Greece imposed on citizens, also five to four. In 2017, it forced taxpayers to fund a Lutheran children's ministry and church, seven to two. In 2018, it rediscovered that hostility toward religion argument in the Masterpiece Cakeshop case, 7-2, and then it upheld Trump's muzzle ban that same year. In 2019, it upheld that massive Christian cross on government property.

0:47:45 Thomas: Yeah.

0:47:46 Seidel: That doesn't violate the constitutional separation of church and state, 7 to 2. Then it just starts to ramp up, uh, the crusade starts to wrap up and you starts to see it kind of fall back down to five to four with one exception. So in 2020, the court just kind of abandons all pretense and says that taxpayers have to fund religious schools, five to four. Later that year and into the next, it's when it began striking down public health measures in the name of religious freedom. And then in 2021, and it uses this, this his phalanx of legalism and jargon to hold that the Catholic Church can discriminate against a minority in the name of God while performing government functions with taxpayer funds. And that was on a technicality. Andrew alluded to it earlier when he was talking about how the court essentially overruled the Smith case, gutted it really, didn't end around.

0:48:31 Seidel: And then just a few months ago, it forced Boston to fly the Christian flag over City Hall, the same flag the insurrectionists carried onto the floor of the Senate. It abolished reproductive freedom. It forced taxpayers to fund religious indoctrination at bigoted Christian schools. And it allowed a coach at a public school to impose his personal religion on other people's children. And more is coming.

0:48:52 Andrew: That's a terrifying list, and I will tell you, again, I read from a passage of the book, everyone out there should should buy American Crusade. If you're listening to the show, you're going to enjoy the read, it's it's a trim 300 plus pages. So I've already got the idea for the sequel in mind, which I will, uh, I will share with you here, which is, what would be a companion piece would be, uh, the court, um, discovering in the mid-2010s, uh, that not only are corporations people, my friends, but apparently corporations have sincerely held religious beliefs, and that that, uh, in addition to everything you've described, uh, the idea that now, uh, an assemblage of votes controlled by dollars purchased as shares, uh, can manifest a belief in the Almighty while, you know, hawking, uh, scrapbooking crap, um, that outweighs the individual's right of free exercise, um,

0:49:25 Seidel: Yeah.

0:49:49 Seidel: One of the hardest parts about the book was that any one of the chapters could have been a standalone book, really. Like that was, it was so hard.

0:49:53 Andrew: Oh, yeah. Yeah.

0:49:54 Thomas: Hey, that's the OA problem too. Any lightning

0:49:58 Seidel: Yeah. I mean, you know, you're right. Like, yeah.

0:49:59 Thomas: Round question could be a whole episode series.

0:50:03 Seidel: Yeah. I mean like the Hobby Lobby case is such a good example too, because it's like the, a bunch of rich people own trusts and those trusts own shares in a limited liability corporation. And that corporation, like it's, it's insane when you get into it, it's sane.

0:50:14 Thomas: Yeah. And don't you dare question the religious beliefs of those trusts.

0:50:21 Andrew: My favorite, and by favorite, I mean least favorite, is because you've correctly described the way in which Hobby Lobby LLC, hawkers of crap, know, has a sincerely held religious belief. But further evidence of the, you Know, they're not even trying anymore, is cases will now include both the CEO of the company and the company itself, you sort of getting two votes, right? It's not just the, see, both like the owner of the country and the company itself all have, you consider themselves to be deeply religious and are offended by provisions in the Affordable Care Act that, you kno, require them to cover contraception um, it's galling um

0:51:03 Seidel: I want to read you to one sentence from the acknowledgments too, because this is important to me. Because, you Know, there are many people who deserve thanks for making any book possible. This is not the work of one person. So I list a few in the back and included is, quote, Andrew Torres and Thomas Smith of the the Opening Arguments podcast, for making this book inevitable by having me on so many times. Here's to lowering the Lukumi bar. Cheers, gents.

0:51:19 Thomas: Aw. I love it. That makes me so happy. And

0:51:29 Andrew: Well thank you so much I

0:51:30 Thomas: Yeah, I think what he's saying is I essentially wrote this book. So make sure that you buy my book, everybody.

0:51:38 Seidel: It would not have been possible without you, Thomas. You were the wind beneath my literary wings.

0:51:45 Thomas: This show's brought to you by Rocket Money. Folks, I am a Rocket Money user. I, uh, and I got to tell you something. I jumped onto Rocket Money. I followed all the steps, did all the things. And I don't want to tell you how many subscriptions I had that I wasn't using. I don't want to tell you that information. I'm being told by Andrew that I can plead the fifth on that. So I don't have to tell you at all how big the astronomical number of subscriptions I had that I forgot about and is. I had a lot of them. If you're anything like me and you think you, you may have some subscriptions that you've forgotten about, or you've, you Know, here's the other one, actually true story. Subscriptions that you don't want to go through the pain of canceling. That's actually what it is for me. Cause they make you call or whatever, but not with rocket money. All right.

0:52:30 Thomas: Here's the thing with Rocket Money. The app shows all your subscriptions in one place and cancels for you whatever you don't still want. You just hit a cancel button and it works. Rocket Money can even find subscriptions you didn't know you were paying for. You may even find out you've been charged double a subscription. To cancel a subscription, again, all you have to do is press cancel and Rocket Money takes care of the rest. It's incredible. So I think you should check out Rocket Money. Get rid of useless subscriptions with Rocket Money now. Go to rocketmoney.com/opening. Seriously, it could save you hundreds of dollars per year. That's rocketmoney.com slash opening. Cancel your unnecessary subscriptions right now at rocketmoney.com/opening.

0:53:15 Thomas: This episode is brought to you by the Jordan Harbinger Show. Joe. I've said it before. I'll say it again. The average podcaster listens to six shows at least. And I bet you, if you're anything like me, you have a lot more than that. Without me alone, I think the average is like two. But then just including my podcasts that I listen to personally, it ups it to six. That's how many I listen too. So no way you're just listening to us, of course, and that's okay. So I'd like to share a podcast that you might want to add to your list. That's the Jordan Harbinger Show, a top shelf podcast named best of Apple in 2018. This time I gave you an episode recommendation, here's a real fascinating one. Recently Jordan had on Matthew Campbell, who's a reporter, award-winning reporter, who has written a book, Dead in the Water, and it's about the the international shipping industry.

0:54:02 Thomas: So here's the thing. Everything we get now is this international shipping. We all learned this with the ship that got stuck in the canal, but it's actually insane how much of the world's commerce is done this way. 90% of world trade is carried out by the international shipping industry to the tune of $14 trillion per year. And there's all kinds of things you might not have thought about. Piracy. Piracy in this day and age. There's still tons of piracy. There's also like insurance fraud among these ships where, you know, like sometimes it's like, oh, we got attacked by pirates, and then maybe they didn't really get attacked by pirates. Really interesting episode, that's the episode with Matt Campbell about the international shipping industry. Fascinating stuff, can't go wrong with adding the Jordan Harbinger Show to your rotation. It's incredibly interesting and there's never a dull show. Search for the Jordan Harbinger Show, that's that's H-A-R-B as in boy, I-N as in Nancy, G-E-R, on Apple Podcasts, Spotify, or wherever you listen to podcasts.

0:54:59 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,

0:55:08 Thomas: All right. Well, uh, now it's time to think, uh-oh, ready to sing it. Everybody. I love it. It's the best. It's already the final quartile. Wow. The quarters are flying these days so fast. Um, final quartile time at patreon.com/law. Hope they're enjoying the goodies. Uh, the early episodes, the ad-free episodes and the Law'd Awful podcast. As soon as I can somehow edit that, hopefully it's already out for you guys. Yeah, actually I think it'll already be out for for you guys. So yes, a lot awful podcasts. Go check it out. That's good reason to become a patron. Andrew, why don't you start us off with our final quartile?

0:55:38 Clip: Yeah, thank you, too. Congrats to the newest member of the Pennsylvania Bar. Woo-woo! Celebrated an OA Philly premium event in my basement bar. Jennifer Kratch. Oh my God, that was the worst Patreon name ever, and I kept it up for two months.

0:56:07 Clip: Jeff Gelbach, it is not illegal to hope bad things happen to Samuel Lee. No, no, it's not.

0:56:14 Clip: Forgot to change my name last month because we have a new puppy. Oh, love new puppies. Lawfulcopter says, America, where we want our children to breed but not read. Philip Kizer, Andrea the Arbitrary and Capricious, Pain Strumpet. Sleazy Legalese. Shop OA's new line of idiot lawyer products, featuring Evan the Corkscrew and Christina Bobblehead. I like that. Just a Boring Guy in Japan. Well, you know, you're in Japan. How boring could that be? Return of the Karaoke Legend, now playing at your local sweaty dive bar. Greg Crimer. Jonathan Milo Meadsong, which is all meteors. A happy crash into Justice. As Thomas's stupid little RV, Abscion. Sergeant Javier Squeda, still awaiting trial in retaliation for whistleblowing the death of a subject in police custody. Join your local labor union. Together we bargain, alone we beg. Do you like my shoelaces? I stole them from Joe Biden. Wordorigins.org has a new book, From Barflies to Bitcoin: How Words Map Our Modern Era, available on Amazon.

0:56:28 Thomas: All right.

0:57:16 Clip: Two fabulous bonus episodes, the Gits and Shiggles, Center for Spoonerism Studies. That's, that's a B-plus joke, I like it. And seriously, though, live show in Minneapolis. False and Anonymous, take it away, Thomas.

0:57:31 Thomas: Thank you to Emotion and Lemonade. Give to modestneeds.org. Then visit deepfakestop.com. Derek, big easy blasphemy. Please don't read this on the pod. We don't need a call out. Thanks for what you do. Born to pun.

0:57:42 Clip: I'd love that you read that, yeah.

0:57:44 Thomas: Yeah, I'm going to read that. That's what my job is. The contract says, look, I don't want to be sued for fraud or misrepresentation or anything like that. The contract says I need to read what's on the thing. Born To Pun, a comedic look at Bruce Springsteen. RhondaTheDork.com. Not that Chris Chris Wallace, a string of unpronounceable characters, tricycler manslaughter. That's a, that's a longstanding one. Love that one. Malika Chandler, also a long standing patron. Malcolm the dragon, the precious variant. Soggy pants. Well, let's face it. Everybody at this level is longstanding. It's just the names that haven't changed.

0:58:17 Clip: He's a long-standing patron, yeah. American.

0:58:19 Thomas: Some of some people haven't change their names. Some people do. We love you both. Soghy pants, dude. Liz, puffy coats of violence. W. Dejuri, belly at patchy said last baby. Heather L. Matthew Vernon. Ian and Allie. Danny Rosari. Therese Chan. Chris Waltrip, Adam Costa, David in Brooklyn, Mitchell, Ice Cube or Ice Tea, I'm not sure, Michael Rops, Sam Donow, I agree with that 100%, and sitting atop the Conrad Michaels chair for best patron in the world, Sam Buck. Good stuff. Thank you so much, top patrons.

0:58:51 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:58:58 Thomas: And Andrews. Finally, we get to hear the answer, see how Andrew Seidel and I did on our shared exam that we had last week. Uh, let's see how'd we do.

0:59:09 Andrew: Question was, Bride again, such weird grammar here. Because her wedding was in three weeks, future Brite requested to use the hotel's banquet hall for her wedding reception. The future bride expected 70 guests. When she tried to prepay for the hall, the hotel said prepaying was not an option, but gave no other reason. On the future bride's wedding day, she shows up and another wedding party is using the hall. For what tort or torts could the future bride bring an action against the hotel?

You both went with D, none of the above, the above meaning, uh, in each of your backup choices. Uh, a Andrew Sidles backup choice, negligent or intentional misrepresentation, and she will succeed. Thomas's backup choice, B, fraud and deceit, and she will succeed. C, conversion of the hall, and she, she will succeed at common law. Let's So tackle each one of these. Neither of you decided to pick conversion. That's good. The fact pattern makes it very clear that there could not have been a conversion here, right? Because arguably, if she prepaid for the hall, you could construct an argument that the hall then becomes in her possession, right, as of that day, and then she She could maybe sue for conversion. That would be a strange application of conversion. But the fact pattern is like, no, no. We don't want you to be super clever here. There's definitely not going to be a conversion. Neither of you fell for that. Andrew Seidel said that A is a preferable answer to B. And Thomas, I have to agree with him on that.

1:00:15 Thomas: Right. Me.

1:00:35 Thomas: Too, all.

1:00:36 Seidel: Nice.

1:00:36 Andrew: Yeah. Pleading fraud requires you to plead the statement with particularity, particularity, and also, uh, it is essentially the same level of see enter as intentional misrepresentation. Um, if, if there was going to be a tort here uh related to statements, you could maybe squint and see a negligent misrepresidentation, uh, but, but really what you'd want to see there is, um, you would want some affirmative statement, uh, by the hotel that says, uh, know, knowing that, that they might have multiple, that, you know, they sometimes book multiple guests for the same weekend. The hotel nevertheless told the bride that, know, that the room would be available. That could maybe fit into an intentional misrepresentation, into a negligent misrepresidentation. But in fact, having gone through those, none of the above is the best answer.

1:01:22 Thomas: Right.

1:01:22 Andrew: That the way to think about this, again, as a civil litigator, and I like graviment of the question for this, the right lawsuit here is breach of contract, And right? Again, remember, you what separates a breach of contact claim and quasi-contractual claims from tort claims is that no moral approbation attaches to that. So, you capitalist economy, the future wedding party is like, hey, we'll pay you triple what that other person would have paid you. They want you to, you know, our society says, okay, so yeah,

1:01:23 Seidel: I

1:01:47 Thomas: Yeah. They want you to cancel some poor future bride's wedding,

1:01:54 Andrew: They want you to cancel the wedding. Right. Take the additional money and pay the damages out. And so the reason you would, as a plaintiff, want to try and add in a tort claim is because torts do have moral approbation that they are a civil wrong. And so you can get punitive damages and exemplary damages and the like. And to me, I liked it because it mirrored kind what you would really go through as a lawyer representing the poor bride here. You'd be like, well, obviously they broke the contract with you. That's not going to be great because we're not going to get a ton of damages from that. So let's see if there are torts that fit. I don't know, know maybe the closest is negligent misrepresentation

1:01:54 Thomas: Heartless capitalism. But Are you gaslighting Us? There's no contract here, are you just saying we could have assumed there was, was one.

1:02:38 Andrew: Um. I think you could infer a contract. I mean, you know, that the, the fact that no money is, you think there's, there's insufficient agreement

1:02:48 Seidel: Think if there's, I think it, there's a contract, it is negligent misrepresentation, like, I, because, because then I think you're, then you are in the territory of like, she's expecting it because of things they've said, even because the payment doesn't matter. Right, like it's like if you have a contract for a date, then you have a contract für a date, so like, so, and that, that's that one sentence in the middle there, like, that's the only thing that suggests the hotel agreed, which is what you were struggling with, Thomas, is like, she tried to prepay and they were like, ah, we can't do that, but no more

1:02:49 Andrew: Right yeah you can pay at the time yeah right.

1:03:05 Thomas: Yeah. Yeah,

1:03:20 Andrew: Yeah.

1:03:20 Seidel: Not because the hall is booked, not because, you know, so like, that the only sense that you get that the hotel even agreed to it.

1:03:20 Thomas: Yeah, yeah. I think we nailed it.

1:03:26 Andrew: So I I I think you guys did fantastically well, so, uh, congratulations to both of you

1:03:28 Seidel: How

1:03:31 Thomas: Andrew Seidel, I expect an acknowledgement in this acknowledgement sections of T3BE that says you couldn't have done this without me.

1:03:39 Seidel: About it, how about in a published work, does that suffice? There you go.

1:03:41 Thomas: That works. I love it. I'll take it. All right. Well, Andrew, uh, let's find out who this week's big winner is. I, I think it's, you know, let's, let's be fair. It's Andrew Seidl and I, but who's is this week's big second place finisher

1:03:42 Seidel: Okay. All right. All

1:03:51 Andrew: Obviously. You know. Yeah. Well, Thomas, I have to say our little snafu in getting T3BE out to the masses did not result in any drop-off in T3B competitive play, and for a winner this week, I'm going with Robbo, who says, my guess is D. This book is everything that is wrong with the law, though. Inaccessible language, lack of information and context, impenetrable jargon. How on earth is a train driver from Sydney, Australia supposed to pass this bar? I need to borrow Neiman's special beads. Well, Robbo, I have to tell you, this is what the bar is like. One of the things I'm enjoying about this book is that it's asking questions that mirror the kinds of goofball questions you sometimes get on the bar exam.

1:04:41 Andrew: So congratulations on getting it right. I hear your frustration. I have thoughts about all of the books and materials that we've used over the years, but you won, you, you saw through, and, uh, and it was a pretty funny post, so everyone let's give them a follow, they are at nedner b underscore rabbo on Twitter, that is at N-A-D-N-E-R-B underscore r-o-b-b oh and congratulations, Rabbo, on being this week's winner.

1:05:08 Thomas: And that's our show. Thanks so much for listening. Of course, check out Andrew Seidel's book, The Crusade, available, you know, of course you could buy it on Amazon. This isn't 100% me talking. I haven't talked to Andrew Seidel about this. I just know that when you order from Amazon, the author gets like, I don't know, three-tenths a penny. And if you order it from the person, maybe their website or something like that, just in general, again, this is just me talking, that gives way more money to the actual author. So look into that. That's my personal advice. But check out that book. It's a great book and he is a great Andrew. Truly the number one Andrew that's ever been. No, not true. But in the top two Andrews that are on this show.

1:05:12 Clip: Crusade

1:05:49 Thomas: We'll see you next time.

1:05:50 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.

1:06:24 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.

1:07:00 Thomas: Liberals Joined in the in the in the fucking law word, what it was. Sorry, in The what?

1:07:00 Seidel: Yeah. Yeah. The majority.

1:07:06 Thomas: Majority. Thing, liberals Joined in the majority on the court, and

1:07:07 Seidel: Yeah, yeah, yeah.