MAGA Fascists Try To Ban Drag and Fail. Repeatedly.

Transcript

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

0:00:52 Thomas: Hello and welcome to Opening Arguments. This is episode 1012. I'm your host, Thomas Smith, and I'm so delighted to be joined by not one, but two lawyers today. That's right. It's Matt and Casey, the dynamic duo, back for some more recording. How's it going, Matt?

0:01:09 Matt: To you live from East Boston, having a night.

0:01:12 Thomas: And Casey, welcome back.

0:01:14 Casey: Thank you for having me.

0:01:15 Thomas: Does this mean we're going to go through more hearings, just more Fulton County? Got any other Fultons County? I was thinking we just keep an eye on that judge's YouTube channel, you know, just see like what else he has going, you know?

0:01:26 Matt: Got some good traffic cases going or something. Yeah, I like him, big.

0:01:29 Casey: Does he have an actual YouTube channel?

0:01:29 Matt: Oh.

0:01:31 Thomas: Yeah, he does. I don't know what's on it. But yeah, they knew what a media circus that whole thing was going to be and made some preparations, it seems like. But no, we're not doing that. That's not what we're doing today. Today, we're going to talk about some queer issues and the First Amendment, right?

0:01:38 Matt: Yeah. That's

0:01:47 Thomas: How Republicans and Alito are totally cool and totally chill on all of that. That's what we're looking at. And we will get to that right after this brief ad break for non -patrons. And if you'd like to skip it, go to patreon.com/law and skip the ad breaks. It's, uh, you don't need to hear them. It's go join the Patreon. It's great. So we'll be right back right after that.

0:01:47 Matt: Right and Consistent, most importantly, uh,

0:02:15 Thomas: Okay, so you've both prepared stories. Who's going to go first?

0:02:18 Casey: I think I'm going to go first. I'm gonna talk about, I'm not even sure what what to call this, but a concurrence that Justice Alito came out with this week on the summary disposition list from the Supreme Court of the United States, which The summary disposition list is, it's basically just a list of cases. Usually, generally, it's a single line that, for instance, just skimming through this, you know, says things like the motion of the petitioner for reconsideration of the order denying leave to proceed in forma pauperis is denied. And so it's these like one or two line things usually denying or allowing either minor motions or denying certiorari.

0:02:31 Thomas: What's that? A Hmm. Is this shadow docket -y type stuff or a different thing?

0:02:59 Matt: Is where the shadow docket works, yes. This is were it lives.

0:03:00 Thomas: Ah, okay. It's so ironic because a summary disposition sounds like, you know, like summertime, like you have a summary disposition. It is kind of the opposite of what is going on here. It sounds like this is something, you I am assuming because you said it was kind of where dog, or the shadow it happens. Usually there's not a whole lot of explanation or, you correspondence going on there, right? It's

0:03:21 Casey: Exactly. For instance, another one from the same day simply says, you know, docket 23325, it says, the petition for a writ of certiorari is denied. Justice Kavanaugh would grant the petition for a writ of certiorari. So Justice Kavanaugh didn't feel the need to, to share his innermost thoughts when it came to this decision. There are a few of them that are maybe a few lines longer, but Justice Alito has quite a bit more to say on the subject of this case that going to get into.

I will say, in fairness, not Alito is not the only one in this batch of summary dispositions that did have something to say about it. In the other cases, it is mainly something to say about disagreeing as to whether a case should be taken. What's interesting, what kind of stood out to me about this one is that he's actually concurring that the case shouldn't be taken, but he decided that he had to share his thoughts on it anyway.

And so I'm actually going to back up for a second because the background of this, this case relates to an employment discrimination case involving a public sector employee in Missouri who is a lesbian. And I'm going to come back to the actual case itself in a couple of minutes, but I want to give the background that I think is relevant to Justice Alito's thoughts on this subject. I think that everybody will recall the Obergefell case,

0:04:31 Thomas: Sure.

0:04:31 Casey: Right, which was The case where marriage equality was legalized in the United States, and Scalia and Thomas in that case dissented, and they had lots of thoughts about whether or not it was appropriate to say that marriage that was not intended for procreation was a constitutional right, and whether or not same-sex marriage specifically was a constitutional right. They had lots and lots of thoughts on that.

0:04:32 Thomas: Sure.

0:04:54 Thomas: Covered on here, actually, Roberts dissented, right? Because we've a number of times we've referred to it. We did so because it was shocking, to say the least.

0:05:03 Casey: I think is less shocking than, this one.

0:05:05 Thomas: A high bar. When you're talking about Alito, that's a high bar, but I think the point of it, you're probably right. The point of it, I think, and the idea that this was a total guarantee and that it couldn't be easily reversed. It was a little unsettling to see that, you know, so-called now very moderate Justice Roberts was actually not cool with gay marriage whatsoever and was like, went out of his way to say, like, this was a bad idea.

0:05:21 Casey: Right.

0:05:27 Matt: This is just the typical reasonable Republican. The court shouldn't be doing this, right? This should be up to the legislature. And the legislature is definitely going to do it if we let them do it. So let them do it, right. Yeah.

0:05:35 Thomas: Hmm.

0:05:36 Casey: Yeah. And just, it goes to show how far right the court has now shifted, right? That, that Roberts is, is very much in the middle. So in his dissent, though, Alito's dissent in Obergefell that Scalia and Thomas joined in, repeatedly expresses the thought that same-sex marriage, which is how he frames it, as opposed to saying marriage itself and the right for two adults to marry the person of their choice, he frames that in terms of same-sex marriage is not a liberty that is protected by the due process clause of the U.S. Constitution, because the due process clause only protects rights that are deeply rooted in the nation's history and tradition. And if that language sounds familiar, it's because it's the same language that he used in the Dobbs case striking down Roe v. Wade. So he's a big fan of relying on that because it tends to, when you fall back on the deeply rooted traditions of the United States that go back to the 1700s, those things tend to favor people that have more conservative views, shall we say.

0:05:42 Thomas: Yeah. Yeah.

0:06:32 Thomas: Whose politics align more with the mores of the 1700s? Is it liberals or is it conservatives? I think it's pretty clear.

0:06:41 Casey: And points out in dissent that no state had recognized the right to same-sex marriage until Massachusetts did in 2003 in the Goodridge decision, and that in fact no country had done so until the Netherlands in 2000. So he says there's no way this could be a deeply rooted right, which is the most important thing to him. He basically says the traditional purpose of marriage was singular. It was procreation. That's it. That was all that mattered. And that's what should be protected, right? That traditional view of marriage. And obviously gay people can't procreate. You are other groups of people that also can't procreate. And maybe their marriages wouldn't be protected either.

0:07:15 Matt: Been together for 20 years. We just haven't gotten around to it yet. So I guess we never should have gotten married.

0:07:17 Thomas: Yeah. Yeah. Well, I guess Alito says you're not really married. Sorry.

0:07:22 Matt: Yeah.

0:07:22 Casey: Or that our, you know, our rights to marriage is not, it's not a deeply rooted right, because the purpose of it was not procreation and

0:07:28 Thomas: Oh, it's medium rooted, though. He's like, you can. Yeah. Semi rooted. So you're fine.

0:07:30 Casey: Know, and then he spends a bunch of time kind of whining about how people who oppose same-sex marriage for reasons of what he calls conscience will be called bigots and they'll be called bigots because the Supreme Court decided to impose this view of marriage on the people of the United States rather than letting states decide, um, you know, their legislatures decide in their wisdom whether or not people should be accorded the right to marry based on, yeah.

0:07:53 Thomas: He really says that because I love that because somehow the court declaring it is not going to affect conservatives, but it will somehow mean that now we'll call them bigots like we wouldn't have before. But now that they like somehow decided gay people can marry, now we'll call them bigots. Why would that be the variable there? Like, why would that change how the...

0:08:12 Matt: This is when we notice. We didn't notice before. How

0:08:12 Thomas: Yeah, is like, oh, I just realized now I can call them biggest or something.

0:08:17 Casey: It does seem to be a major concern for him because a couple of years down the line, he references it again. So I don't know if you guys recall Kim Davis from Kentucky. She was a clerk, right?

0:08:28 Matt: Could we forget?

0:08:29 Casey: How could we forget?

0:08:26 Thomas: Sure do. Yeah. She's been somewhat in the news recently, Right. For just finally having to pay somebody or something. Oh, so good.

0:08:34 Casey: Yes, yes, that's right. And this actually relates to that case, right. So Thomas, who was joined by Alito, previously had a dissent or a statement, I'm sorry, I should say a statement on the certiorari denial in Kim Davis's most recent case. And so without going too far into it, basically, Davis was a clerk in Kentucky who was responsible for issuing marriage licenses. She claimed, or I shouldn't say she claimed, I actually don't doubt that she is a devout Christian with sincerely held beliefs.

0:09:02 Thomas: Sincerely held bigoted beliefs. Yeah, I'll go ahead and grant her those. Yeah. I agree. You are sincerely a bigot. Yeah wow.

0:09:05 Casey: I don't I don't doubt that that's the case, that she feels very strongly about gay people, strongly enough that she was willing to violate the Constitution and refuse to issue marriage licenses to same -sex couples, she says, based on her religious beliefs. And she got sued over that. She also ended up, I believe, not getting reelected. I believe one man who she refused to issue a marriage license to actually ran against her at one point. I don't think he won, but.

0:09:26 Thomas: In Kentucky. Wow. That's

0:09:32 Matt: Yes.

0:09:33 Thomas: Wow. Yeah, it's that's interesting. I like that. You know, I used to work for the state of California and Department of Corrections, and I would have loved to be able to be like, hey, I really don't agree with how many people we have in prison, so I shouldn't have to like do any of this work, right? Or I should, like, I should get to, like, when I'm doing the budgets, I could allot whatever I want because I, it's my beliefs, or do you just do your effing job because you work for the government

0:09:55 Casey: Yeah. Yep. Yeah, exactly. I would think if you couldn't do your job that you would perhaps find another job, or just send out one of your minions if you're like, like, I really can't be the one to put my stamp on this. Although I think one of her complaints was the stamp had her name on it. But, you know, get somebody else to issue the marriage licenses or to stamp, I guess, with your name, which is whatever. But so she really, really didn't want to issue these marriage licenses. She gets sued for violating the constitutional rights of the people trying to get the marriage license, based on Obergefell.

Thomas and Alito were big mad that the Supreme Court had said that marriage was a constitutional right, as you might recall, so she couldn't discriminate against people in her public sector job based on her sincerely held religious beliefs. So this again is, this is a concurrence in denying certiorari. And I have to be honest, I'm not sure why they were agreeing. I assume it was a procedural issue of some kind, but they really, really felt like they needed to say something anyway.

And so Thomas pens this concurrence in the denial of certiorari. And the gist of it is, again, complaining about Christians who oppose marriage equality being treated like bigots and not being allowed to discriminate against LGBT people in their public sector jobs.

0:10:08 Thomas: Sorry Are we, I forget which level of inception we're on now, are we back, are we on the, we're not the Alito one that you opened with, this is a different, okay.

0:11:07 Casey: No, no. This is a different one. We're leading up to the most recent one.

0:11:08 Thomas: No I get it I just want to make sure I remember, I, I do like the build-up. So this was like the same type of thing where he's writing like a, a, like to whom it may concern, you know, he's he's complaining to the manager essentially that on the, on the, but, but he agreed, against, again, another weird case where like he agreed with the decision to not grant cert, but wanted to say something about, okay, it and this was Thomas, okay specter

0:11:18 Casey: Exactly. Exactly. It's It is Thomas, Alito joined with him. He, again, the specter of Obergefell and how offensive it was to him and Alito and the dearly departed Justice Scalia.

0:11:37 Thomas: Room. Getting married sound so spooky, you know, which I think is fun. Oh,

0:11:44 Casey: Fun. He says, and this is a quote, Davis may have been one of the first victims of this court's cavalier treatment of religion in its Obergefell decision, but she will not be the last. Due to Obergefell, there's the specter again, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other anti-discrimination laws.

0:11:53 Thomas: God. Gosh.

0:12:09 Matt: Participate in society as being an elected clerk, a

0:12:10 Thomas: Yeah. Yeah, I, anything in society without also doing elected clerk stuff. Just walk out my door and someone's like, hey, can you approve this, this marriage? Ah, gosh dang. It

0:12:12 Casey: Yeah, as a total aside, this is how I always kind, kind of think too about the pharmacists that don't want to dispense certain medications when it's like that's literally your job, like dispense the medications, it's not really your business, like what you think of them.

Um, but this is, in this situation he again says, well, this, you know, this implicates such important questions about the scope of our decision in Obergefell, but it does not cleanly present them, and so for that reason, I concur in the denial of certiorari, but nevertheless this petition provides a stark reminder of the consequences of choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically the court has created a problem that only it can fix.

Um, so that's sort of the sum and substance of it, you know, obviously there's... there's more sort of in between and after that, but that's the sum and substance. Ultimately the case goes to trial, Kim Davis's case, in 2023, I think in September. And jury awards $100,000 to one of the couples that Davis refused to issue a marriage license to.

0:12:27 Thomas: Yeah that's Nice, sometimes good-ish things happen

0:13:22 Casey: Unfortunately, the other couple, for whatever reason, didn't get damages. I'm not sure why, but they did win. So that leads us to this most recent concurrence from Justice Alito, this completely discretionary concurrence that he wrote. Um um, was a petition for certiorari from Missouri, from the state of Missouri, and in fact the defendant in this case was the state of Missouri, because this is another public sector employee. Um, and my understanding is that this was um an employment discrimination case um in Missouri where the plaintiff was a lesbian who claimed that she'd been either discriminated against or harassed by another employee and that the state, which was her employer, was responsible for that. So during the course of jury voir dire, and I, you want me to explain what jury voir dire is?

0:13:31 Thomas: Yeah

0:13:35 Matt: Editorials really? Yeah

0:14:07 Thomas: We know, I think voir dire is, uh, one thing I think the listeners, uh, are kind of familiar with, you know, it's the process by which, uh, [FLAG]

0:14:09 Casey: Okay. Okay. During jury voir dire, the plaintiff's attorney asked potential jurors, so, how many of you went to a religious organization growing up where it was taught that people that are homosexuals shouldn't have the same rights as everyone else because it was a sin, what they did? And that's a direct quote.

0:14:32 Thomas: With what they did, what?

0:14:34 Matt: Is that

0:14:34 Thomas: Yeah

0:14:34 Casey: Yeah. That's why I specified that it's a direct quote. Then he follows up and he says, what he's actually asking is if they went to a conservative Christian church and that's what they taught. So one juror raises their hand. And counsel then asks, how many people cannot set aside their religious convictions? Just say, look, I don't think I'm qualified to sit here in this case. If this case involves someone that is gay, I can't treat them fairly. I just can't set that religious conviction aside. And then another juror raises their hands. So just as an aside myself, this I want to point out, this was attorney-led voir dire. And so apparently the vast majority of states have attorney-led voir dire. We've had it here since 2015 now. So it's been a while, but it's one of those things I'm not a huge fan of, this -led voir dire. Like I'm old enough that I can be like, well, back in the good old days judges did the voir dire, yeah.

0:15:12 Thomas: Oh what's the alternative, oh really do they do it, okay, I assume the attorneys are still participating, right? Because don't you object to, like, you, what's the distinction in the, in the leading part, how

0:15:28 Casey: The distinction is this, is that if you have, and this is the way, again, this is actually the way it's done in most trials here still, um, the judge is the one that asks the questions, and so prior to voir dire, um, the parties, um, submit requests for jury voir dire questions and, you know, it's usually a list of like fairly pro forma things, and then the judge says, yes, I'm going to ask them, or no, I'm not, and then depending, all the judges, almost all judges have slightly different ways of doing this.

But generally what they do is they ask the group of jurors and either raise their cards with their numbers on them and the court officer takes note of them if they've answered yes to a particular question, or the judge asks all the questions and then the jurors are supposed to make note of what they've answered yes too. And then they go up individually to sidebar.

And in any event, all the jurers end up going up to sidebar so the judge can individually question each one of them with, you know, any follow-up questions about things they've answered yes to. So if you're like, know, you, one of the questions is almost always an explanation of the presumption of innocence or the reasonable doubt standard in criminal cases, pretty, you much always a question of whether or not people understand that and could actually abide by it. And there's always a couple of people that are like, absolutely not, I do not believe in the presumptive innocence.

0:16:37 Casey: To be frank, there are sometimes people people that I think are trying to get out of jury duty. I don't know how many people sincerely feel that way. Anyway, so with attorney-led voir dire, what it is is that the attorneys are ones that ask the questions of the jurors, and then they raise their little cards and then they get to ask more questions. Presumably, I would hope it's sidebar, but basically the difference.

0:16:36 Thomas: Yikes, yeah Yeah. Yeah yeah I do like that judge, a judge-led one better, that seems more like fair or something

0:17:00 Matt: Me too you know as somebody who's done this a number of times, like, it's, I, I really don't want to be asking the questions, I think that's weird for me to be grilling the jury ahead of the trial but I guess I'm old school, I don't know specifically

0:17:02 Thomas: Yeah yeah oh

0:17:10 Casey: And Well, And I personally just think that these extremely poor compound questions that think were sort of problematic. It lends itself to these types of things being asked when you're kind of asking off-the-cuff questions and it's an attorney doing it. And I have to say, I don't know if other states have restrictions on the types of things that you can ask, but I don't think that this is a subject matter that would be allowed to be asked about here, at least not in this way,

0:17:36 Thomas: That's it, so what, wait, but you're in a more liberal state, right? Are you saying you wouldn't be able to ask, like, "Hey, any bigots here, raise your hand, bigots?" It's interesting.

0:17:43 Casey: At least when originally started this, what was at the time a pilot project, you couldn't ask about things like people's political affiliations or religious affiliations. There were a whole list of topics that were off limits, and one of them was was religious affiliations, probably for this reason, you know, because I think if you wanted to say, like, "Do you know of any reason that you couldn't be fair and impartial when it comes to a, or an individual who is, who identifies as homosexual," I think that would be completely fine, but that, that this was phrased, I actually think would not be fine, at least not here.

0:18:14 Matt: If you went to a Christian church, right? That was the question, it

0:18:17 Thomas: Okay.

0:18:17 Casey: Basically, the jurors then saying, this is why I think it is a little problematic. Those two jurors then go on to say that they think that they could be fair and impartial despite their religious beliefs. Then Another juror, apparently there's some other kind of weird question that one of the attorneys asked, that one of the other jurors basically says he agrees with the two of them, but also that he can be fair and impartial. And so counsel moves to strike those three jurors, the two jurors that, you know, that said that they were raised with those types of beliefs, but could be fair and impartial.

And a third juror who basically indicated that he agreed with the the other two, he moves to strike those jurors for cause. The judge says that, you were clear they could be fair and impartial, they'd be struck out of an abundance of caution, or at least that's the way the state of Missouri frames it. The Missouri Court of Appeals takes this case.

They say that there's no constitutional violations because the jurors were struck based on their beliefs, not based on their status as members of a particular religious group. I have to say, that's why I think that the way that that question was phrased was a little bit problematic, is because to me it does sound, when I first read that, how many of you went to a religious organization growing up, and the second part of the question was whether they went to a conservative Christian church and that's what they were taught.

I mean, I think there was a better way to phrase those questions if what you were trying to get at is, do you have some sort of deeply held belief that

0:18:26 Thomas: Huh. Yeah.

0:19:27 Casey: Makes you likely to discriminate identify as queer or gay, that seems to me to be completely fair game.

0:19:32 Thomas: Yeah. Did it, I forget, did the question allow you to like have changed? Is it just like, what were you raised by with? Or, cause it just sounds like if you went to it, if tended to church, like maybe you didn't agree with it or something. I don't know.

0:19:39 Casey: Yeah. That was the first part of the question. It was just, you were taught this? And then the second or third part of the question, because this was, again, not a well-phrased series of questions, was whether or not they could set aside those religious convictions.

0:19:55 Thomas: Seems weird because I could imagine maybe Maybe these jurors who said like, yeah, but I can still be fair. I mean, I could imagine unless I'm forgetting another part of the weird compound question, like maybe you attended that church, but didn't agree or change your mind. And so how would you answer that? Like, how wouldyou have answered if that was you? You

0:20:08 Casey: Yeah. So It is sort of a strange way of framing it, um, So they end up empaneling a, um, jury of people who say they can be impartial, that do not include the jurors that are at issue here, and, um, then that jury ends up returning a verdict against the state of Missouri, or the department within the state of Missouri that the plaintiff was employed at. And then the department moves for a new trial, and they argue that the trial court violated the 14th Amendment when it excluded those jurors because of their religious beliefs, despite the fact that they say that the court found that those religious beliefs would not cause them to be biased against the plaintiff.

0:20:46 Thomas: Gotcha.

0:20:46 Casey: That was denied, and they then sought certiorari from the U.S. Supreme Court.

0:20:50 Thomas: So, there, so this is the state who is like, we don't want to be responsible for, I, the co-worker who discriminated, is that what it was, okay.

0:20:57 Casey: That's my understanding. I have to be honest, there's not a great deal about the facts of the case in the petition for cert. Yeah, yeah, that's what it sounds like, is that it was imputed based on the co-worker's conduct towards the plaintiff.

0:21:01 Thomas: Okay. Granting cert was like the better outcome, right, for people who are in favor of, like, queer rights. Yeah.

0:21:16 Casey: Certainly the case. So the state of Missouri files this petition for cert. They point out that there's a split between jurisdictions, which I actually did not know until I read this, as to whether or not religious beliefs and or religious affiliation can be a valid basis to strike a juror. And the state of Missouri says that five jurisdictions prohibit strikes for cause based on religious beliefs, and five permit them, and permit strikes for cause, they say, based on religious beliefs combined with religious affiliations. And I'm just kind of repeating that based on what they have in their petition for certiorari.

So I don't really vouch for That, but there is a split as to the degree to which religious beliefs and religious affiliation can be used when it comes to jurors for cause, or So the state basically says that the 14th Amendment, and this is kind of relevant to what Alito says later on, prohibits striking a juror based on membership in a protected class, and they say, you know, this is one of those things that gets heightened scrutiny. They acknowledge that the beliefs themselves can be a basis to strike if they cause bias, which I think is interesting because, again, had these questions been framed a little bit differently, this wouldn't have been really much of an issue at all here.

0:21:48 Thomas: Okay. Yeah.

0:22:21 Thomas: That all makes sense, I mean, I get, someone was going along being like, "Hey, are there any Muslims in this jury pool, you're out," you know, we wouldn't want that. But if someone was like, "Because of my Catholic beliefs, I don't believe in the death penalty," which, every Catholic I know is super into the death penalty. So I don't understand that, but apparently that's a thing. Yep. Absolutely.

0:22:38 Casey: Yeah.

0:22:38 Thomas: I don't know if it's an East Coast, West Coast difference, but like every Catholic I know is just conservative all around and loves the death penalty. Weird.

0:22:43 Casey: Oh, that's interesting. Yeah. Because I went to Catholic school and actually we went to a Catholic law school and it was.

0:22:49 Matt: Much the other way, it's

0:22:49 Casey: Yeah.

0:22:49 Thomas: Weird.

0:22:50 Casey: Interesting.

0:22:51 Thomas: Anyway, if it was something like that, it makes sense that you could be like, belief well, based thing where it's like, yeah, you can't really be on this jury, not because of just what religion you are, but because of the beliefs involved in that religion.

0:23:02 Casey: Mm-hmm. And the beliefs that you yourself hold. Right. I mean that seems to me to be you probably fair Game. And I tend to think that even the state of Missouri, at least they suggest that they would be OK with that if it was based on an individual's belief that would make them biased towards a party in the case, or against a party in this case. So the Supreme Court declines to take the case, probably because there are a couple of procedural issues that really make it inappropriate. And even Alito acknowledges that. Basically, um, because the Missouri court found that the objection below was not preserved, and they only reviewed for plain error under state law. So this is not a good case for the Supreme Court to take, for that reason. Right?

0:23:04 Thomas: Yeah. Right. Right, right. Yeah, good point.

0:23:34 Thomas: Why wasn't it preserved? Because they didn't like know. To it at the time or something? Otherwise, it's not. How would they have done? I guess when the judge said, yeah, yeah, they can go, they get out of here, skedaddle, the state's attorney would have had to object at that point. And

0:23:38 Casey: Right.

0:23:47 Casey: Missouri court found that they didn't, that the objection wasn't preserved, but yeah, typically you do need to object at the time that you think that there's an error, and um, if you don't, then it ends up being reviewed under a more favorable standard to the other party. Right?

0:23:59 Thomas: It's not like you're totally out of luck necessarily. It's just going to be a harder standard. Oh, that's interesting.

0:24:03 Casey: Yeah. And what they call that standard there is plain error. And so I think states have some sort of standard of review like that, whether it's plain error or it's prejudicial or something along those lines. So, um, Alito, his statement on the denial of certiorari, he agrees that this procedural issue, uh, makes this an inappropriate case for the Supreme Court to take, but he takes the opportunity anyway to reiterate his warning from Obergefell that this will lead to religious bigotry, um, so we're back to him repeating what he had To Say, really.

0:24:31 Thomas: Religious bigotry. You mean religious persecution or something?

0:24:33 Casey: Well, bigotry towards religious people, Because That's What he's concerned about, right? That that people are are being called bigots based on their religious beliefs.

0:24:35 Thomas: Oh, I see. Okay gotcha. Yeah, Yeah.

0:24:41 Matt: In their bigotry, yeah.

0:24:43 Casey: So he says, in this case, the court below reasoned that a person Questions of sexual morality is presumptively unfit to serve on a jury in a case involving a party who is a lesbian. That holding exemplifies the danger that I anticipated in Obergefell v. Hodges, then, and he gives a citation of the case, namely that Americans who do not hide their adherence to traditional religious beliefs about homosexual conduct will be labeled as bigots and treated as such by the government.

Then he goes on to say the judiciary, no less than other branches of the state and federal government, must respect people's fundamental rights, and among those are the right to the free exercise of religion and the right for the equal protection of laws. When a court, a quintessential state actor, finds that a person is ineligible to serve on a jury because of his or her religious beliefs, that decision implicates fundamental rights.

What I thought was especially interesting about this, besides the obvious, is that Alito says in a footnote that he would review this under the First Amendment free exercise clause, not the equal protection clause, which is what Missouri was actually arguing for, that's the basis of their petition, is that this violated equal protection, and he says no, I would review this under the First Amendment, because that's pretty clearly where his concerns lie, is that people should have the right to discriminate against queer people if that is what they feel that they should do based on their religious beliefs. Yeah.

0:25:41 Thomas: Hmm.

0:26:01 Thomas: All right. I'm not the lawyer here, but it doesn't make a whole lot of sense to me just because, like, I think everyone would agree there are things and beliefs you would have that would disqualify you from jury pools, right? Like you have a First Amendment right to a lot of things or to believe a lot of things, or to say a lot things, right? Not just religion, you have the First Amendment right to be a neo-Nazi. But I feel like we could all agree that if you were in a jury pool and like, I don't know, the victim was Jewish or something, you'd be like, well, I am a neo-Nazi, and be like, nothing I can do about that, can't strike you at all.

0:26:11 Casey: Yeah. -hmm.

0:26:30 Matt: And also, if you want to go biblical, I mean, for many, many years, you know, the thing about the curse of Ham was used to justify slavery, right, to Say that that black people were inherently subhuman or whatever, because Ham saw his dad naked once, right? It goes back to, to Noah. I mean, there's just all kinds of ways that these things can be twisted around.

0:26:37 Thomas: Yeah.

0:26:48 Thomas: A scale of not making sense, that is one of the higher, not-making-sense beliefs of things in the book.

0:26:52 Matt: The curse of Ham is ridiculous, yeah. It's not even really in there, it's just something that they decided to put in there because it made sense to justify slavery, but yeah.

0:26:53 Thomas: Yeah. Yeah, yeah. Well, I mean, there is some of it in there. I remember being like, I don't even understand, like, what's the problem here? And I had to read several explanations when I came to that part of the Bible to be like, oh, the problem is that he saw his dad naked. Why is that his fault?

0:27:13 Matt: It's a big problem.

0:27:15 Thomas: And his dad was the one who passed out drunk, too. It's the weirdest everybody?

0:27:15 Matt: Well, Right, and he's just walking by.

0:27:20 Thomas: It's a weird book.

0:27:20 Casey: Wow.

0:27:20 Matt: No, well, but there's more about that than there is about lesbians, right, Right. So, I mean,

0:27:23 Thomas: That's fair. Yeah.

0:27:25 Casey: Have to be honest, I have no idea what you guys are talking about, but that sounds bad.

0:27:27 Thomas: Oh, there's really dumb things in the Bible. I don't know if you know this. It's the lot of really, really dumb thing.

0:27:33 Matt: A very long book.

0:27:34 Thomas: Yeah, it's really long.

0:27:36 Casey: Stay tuned, because I imagine that this will be rearing its head again. And it seems like Justice Alito and I would imagine some of his friends are probably interested in finding a similar case that does not have state law procedural bars that would prevent them from deciding this issue. And it seems very much like he at least would like to decide it under the First Amendment, which I imagine would give him more leeway to express his thoughts about people being called bigots based on their religious beliefs.

0:28:06 Thomas: So what do you think of my non-lawyer impulses there? Is the First Amendment thingy kind of right? What do you guys think about that?

0:28:13 Casey: I think the problem you have, though, is, and you might recall the case from, I believe it was Colorado, about the website and designer that didn't want to design a website for gay people, is my recollection. The Supreme Court said that that was A-okay, that she could discriminate against people because a website was expressive conduct, um, and she couldn't be forced to express things that went against her religious beliefs.

0:28:19 Thomas: Yeah, God.

0:28:33 Thomas: Well, fair. I know this court sucks, but isn't, but the fact that it's, it's a jury pool, you're not, like, the point of being on a jury is not to express your views, is it? Like

0:28:41 Matt: Yeah.

0:28:43 Casey: And mean that is kind of what you do in the jury room but

0:28:43 Matt: In the jury room it is, but yeah.

0:28:45 Thomas: It's not, not, not in a, like, First Amendment free speech way, is it? I mean, is that really the problem? With Because, like, there's all kinds of reasons you strike jurors, and if it's anything to do with what the juror believes, then wouldn't it be violating their, like, free speech if that were really what was going on? Oh,

0:28:45 Casey: Um That, that questions could be framed in a way during voir dire that would be much less of a problem than making them sound like they were based on people's religious affiliations. Right.

0:29:13 Thomas: Guess what I'm saying is, like, I, yeah, would think that the problem with striking, you know, black people from juries or whatever, is not, like, necessarily some sort of First Amendment related thing. I mean, that's not a good comparison, but if it was some equivalent you-based thing, it's just, it's like, equal justice for everybody, buddy, right? Isn't that more of the concern? Like, one of the other amendments, the 14th, it might be, I don't know.

0:29:32 Matt: Equal protection. Yep.

0:29:33 Thomas: Equal protection. There you go. That's a good word for it. You should, you guys should use that. Use that phrase.

0:29:35 Casey: Well, yeah. I mean, So it brings up a couple of interesting things. One is, yeah, I mean you're entitled to a fair and impartial jury, right? Right. So I think that people on the Alito side of things would say, well, but these people said they could be fair and impartial and it's up to a judge to decide whether or not they were being sincere about that or not. But aside from that, that's something interesting that does come up in Missouri's brief, is that I believe some states and some federal jurisdictions say that if you remove a juror based on an inappropriate reason, right, like if you remove a juror based on race, it's not just the defendant's, let's say in a criminal case, the defendant's rights that are being trampled on, there to have a representative cross-section of the community. It's actually the juror's rights as well. Right.

0:30:11 Thomas: Sure. Would it be their first amendment? I

0:30:16 Casey: No, I mean, I think it's a fair point that the point of being a juror isn't really to express your religious beliefs in a jury room. But I suspect that the way they would see it is the rights of a person not to have the government discriminate against them by striking them off juries based on what they believe, that's how Alito frames it at least, right?

0:30:36 Thomas: Then I'm looking forward to when we get to undo that whole thing where you can't be on a death penalty case if you don't believe in the death penalty as punishment, right?

0:30:44 Casey: Yeah, Based on religious beliefs, right?

0:30:46 Thomas: Or I mean, well, anything. But yeah, sure. I'll pretend I have a religion for that if that helps me stay on a jury.

0:30:46 Casey: I I mean, there are plenty of people who have gotten struck off juries because of their religious beliefs, but again I think that what it comes back to, right, is whether or not somebody can be fair and impartial. Um, so at the end of the day, this might not have a great deal of impact even if Alito gets to rule the way he wants to, except for continuing to chip away at the rights of queer people and non-Christians to not be discriminated against. Um, I think ultimately it could probably be phrased in a way, in pretty much any case, that would allow you to get at sort of the root of the issue, which is whether or not somebody is biased against queer people. Right.

0:31:20 Thomas: Yeah, I just think I'm paranoid about bringing the First Amendment into it. It just sounds like another way to like move, Christian privilege where it doesn't belong. You know, like putting it in those terms seems weird to me.

0:31:25 Casey: Yeah, absolutely. Yeah. Yep. Yeah. Absolutely. That's absolutely like, yeah, it's, I mean, it's, that's a huge problem. It was a huge problem with that case from Colorado. Yeah. I totally agree. I just was trying to explain what what I, I think that they're getting at. But no, I think it's going to continue to erode people's equal protection rights. Um more that we have cases like this, even if ultimately it's one little case at a time, I do think it, chips you away.

0:31:36 Thomas: Yeah. Yeah,

0:31:49 Matt: I got to say, I'd like to see Samuel Alito exercise his first amendment right to shut up about this dissent he wrote.

0:31:53 Thomas: Never going to happen.

0:31:55 Matt: No.

0:31:55 Thomas: Matt, never going to happen.

0:31:57 Matt: About anything. I know. Yeah, yeah. You know, as soon as I read that Ábrego García to the scent, I knew we were not going to see the last of that. But here it is, third time.

0:31:58 Thomas: Yeah. I'm worried about Obergefell being struck down. I mean, we lost Rowe and that was far more, you know, I don't know. What's the word for that?

0:32:08 Matt: Sure. Deeply rooted.

0:32:13 Thomas: Deeper.

0:32:13 Casey: Deeply rooted.

0:32:14 Thomas: Decisus, that's what I was going for, you don't

0:32:16 Matt: To size is what you're looking for, I guess. Yeah. All

0:32:17 Casey: Matt has something somewhat more positive, uh, about the First Amendment, which, opposed to the the ways in which Republicans love the First Amendment when it comes to their own religious beliefs, they do not seem to feel the same way when it comes to other people's, uh, to express themselves in ways that they do not agree with, and that's, that's what Matt, I think, has to talk about.

0:32:34 Thomas: Say

0:32:36 Matt: Especially when they're having fun. So I took a look at anti-drag legislation, and I want to sort of, I'm not going to go through all of it, but I want to talk about why it's not working.

0:32:37 Casey: Hate fun one

0:32:48 Matt: Because there is no anti-drag legislation in effect. They have made a number of efforts to pass it, but courts have suspended it every time, have rejected it because, well, lots of really good reasons, actually.

0:32:58 Thomas: Oh I Ask, is it specifically because, I know there's a lot that has been made about the drag queen story hour, is it specifically like involving that kind of thing, or is it just like bills, these tend to be like no drag at all?

0:33:11 Matt: One of those things is in the case of protecting minors, but they're clearly trying to go as broad as possible. And in several cases, they're definitely trying to stop pride events pretty openly. Certainly.

0:33:19 Thomas: Gotcha, holy.

0:33:19 Matt: I wanted to talk about why these things don't work under the First Amendment, why they almost certainly will never work as long as we have judges properly interpreting the First Amendment. And here we even have a Trump appointee who writes a very good decision, which I'll start with in a minute.

I just wanted to say that there's been a long history, more than I realized, of trying to legislate and criminalize what we call today drag, but what has been in the past called cross-dressing or whatever else, you know, of people wearing clothing of a gender that is not on their birth certificate. It goes back, I mean, the first known arrest for someone being in drag was in 1888, William Dorsey Swan in D.C. And he had a grand ball. This is a tradition, actually.

And this was very much a black tradition, too. This was something that really I wasn't aware of at all. It was very interesting to read about. And I could spend quite a lot talking about what I've learned, but I'm not going to. This isn't really relevant to the point. But the pansy craze during Prohibition in the '20s, when everybody was kind of losing their minds because they couldn't drink and they were going to speakeasies and having a lot of fun. There was this whole thing where female impersonators were just everywhere. It was just a thing that everybody enjoyed and was taking part in. And then it started to become more criminalized over

0:34:03 Thomas: Weird

0:34:20 Matt: Time. So we think of these drag bands as being like this very new thing in reaction to a new idea. It's been around for a while. It

0:34:20 Thomas: Yeah

0:34:27 Casey: Might say that it's, it's deeply rooted in the traditions of the country.

0:34:30 Matt: Yes. Goes way back. So, you know, just both the practice and the banning of it. There's a few fundamental issues that are always going to come up with these things that they cannot get around when they try to pass them. And I just wanted to talk about them. We'll look at each one of the statutes in a second. But just to introduce some of these concepts, a government action is infringing on a fundamental constitutional right. And course here, we're talking about First Amendment free speech right.

So, very, very fundamental individual right. The state has to show a compelling interest that overrides that right. Burden's on the state anytime they're trying to impose on that interest. It has to be narrowly tailored in the least restrictive way possible. And there's just a whole body of Supreme Court case law that goes way back on this. Very basic stuff, stuff. So pretty fundamentally, if you're trying to restrict a certain kind of performance, that's going to be content-based. It's pretty hard to get around.

So if you have content-based infringement on free speech, that applies to particular speech because of the topic discussed or the idea of the message expressed, the government has to use the least restrictive means available to achieve that compelling purpose. And the compelling interest of the government can really only be things like health and safety, regulation of violent crime, national, national security, really big things.

So even something arguably like racism, which it is very much in the compelling interest of the government to stop or to mitigate racism or to try to wipe it out, regulating certain kinds of speech is not necessarily going to fix structural, institutional racism. Can't have it, for example, be a crime to use a certain racial slur. That's just not something that the government can do. That would be a content-based restriction, restriction.

You could try to say it's content neutral, that we're just banning any of these things, in that case, it has to further an important government interest in a manner substantially related to that interest, which might get you a little further toward what I'm saying. But then you get to viewpoint-based restrictions, and that's really bad, because then you're targeting particular people saying particular things. And we really don't want that to happen. And that's clearly what a lot of these bans are about as well.

Other issue almost always with these bans that we'll see is that they're, they're both overbroad, because they cover a really broad range of conduct that's hard to describe, and void for vagueness, which is the idea that the person has to be able to know if they're breaking the law. So

0:34:31 Casey: Yeah

0:36:27 Matt: If it's just too vague and it's using words that we don't really know exactly what they mean, we've got all kinds of problems. So those are the things to keep in mind as we're going through. I'm just going to run through a few of these and the very good decisions that have come out to strike them down. First in Tennessee, they were the first in the country to attempt this, and they signed the Adult Entertainment Act.

April 1st, 2023, and it was immediately challenged, of course, by a group of drag performers in Friends of Georges V. Mulroy. It itself is worth just mentioning quickly because every one of these bills is set up a little bit differently. None of them are very good, but they're all trying to do different things.

It defines adult cabaret entertainment as adult-oriented performances that are harmful to minors, as that term is defined, and that feature topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers. So you can start to see the problem here. Now, it's one thing to say that kids can't go to strip clubs. I think that's pretty well accepted. When you're saying that kids cannot go to performances that involve male or female impersonators or similar entertainment, you can already see where we're going off the rails here.

0:36:27 Thomas: I might be a male impersonator, actually, just, just depending on how it's defined, I don't know, yeah.

0:37:30 Matt: And yeah, on your masculinity standards, yeah. There was a Trump appointee who took a look at this named Thomas Parker, and he wrote a very good decision. It's really a model for what kind of decision you should see in a case like this involving these kinds of statutes. He finds straight up, right away, that this bill is content and viewpoint-based restriction. There's just no way around it.

It was passed for the impermissible purpose of chilling a certain kind of speech, and there's just nothing you can do to save it from strict scrutiny review. The state was trying to argue that it has a compelling interest in protecting the physical and psychological well-being of minors, and that extends to shielding them from indecent messages that aren't necessarily obscene.

And that's a big part of these problems with all of these as well, is that it's really hard to say that drag shows meet the definition of obscenity, which we've discussed recently in the context of Nude Dancing, right, of the Miller test, Miller v. California, that it has to be, that's legally obscene if applying contemporary community standards, a reasonable person would find the work, when viewed holistically, appeals to prurient interests, contains patently offensive conduct, and lacks any serious literary, artistic, political, or scientific value. Now, I will admit I've never actually been to a drag show, but Casey, you certainly have. Does that sound like a drag show?

0:37:34 Thomas: Yeah yeah

0:38:39 Casey: Really, never been to a drag show? You never came to Jocks with us?

0:38:41 Matt: Never No, once. Sorry, I missed out. But in that definition I just read, does that sound like a drag show?

0:38:41 Casey: Huh gosh no I mean, considering like there's large groups of people like night of the week over at the cabaret here, uh, and bridesmaid's parties, as well as it doesn't seem like type of thing that society as a whole finds like totally lacking in any type of value besides the prurient interest, um.

0:39:03 Matt: I mean, there's nothing much more prurient than a bridesmaid's party, but I don't know.

0:39:06 Casey: Mean

0:39:06 Thomas: I think the most obscene thing is the word prurient. I've I'm on the record as saying that there's nothing more obscene that Pick one of the R's, you can't have both of those in that word, pick one, it's either prude or no, what would the other one be? I don't even know, prurient, I guess, yeah, there we go.

0:39:10 Casey: Yeah

0:39:10 Matt: Yes, Yes, I hate that word. Right, right.

0:39:25 Thomas: Pick one, that's all you get, yeah.

0:39:24 Casey: Well You know, yeah. Some of them are a little bit more adult themed than others, but then there are others like the drag brunches and stuff that they have around here that are pretty, I mean, the type of things that appeal to sort of like suburban, like soccer moms, you know, it's like slightly risque, but like, not really patently offensive.

0:39:40 Matt: So patently offensive is what you're saying. Okay, yeah. Okay. Just, just for those of us who haven't been to a drag show, what typically happens at a drag show? I've

0:39:50 Casey: Uh, It's people, men, I mean, although not always, but generally men that are dressed in, you know, female ways, with you know heavy makeup and wigs and so forth and they, they dance and they sing and they have little routines and, you know, depending again on the type of show they might go around and solicit tips or in front of particular people. I mean it's like I said, it's You know

0:40:08 Matt: Heard enough. That's disgusting. Okay? That is absolutely.

0:40:11 Thomas: Sounds pruriant to me, yeah.

0:40:12 Casey: Very prairie

0:40:16 Matt: Yeah, so that just sets the context of what we're actually talking about. Now, of course, there have been a lot of clips circulating on Tucker Carlson and such of, you know, particularly like extreme things that can sometimes happen at drag shows. Again, in the context of our culture and our society today, as is pointed out in this decision and has been pointed out in a lot of these cases, if you're watching the Super Bowl, you're going to see cheerleaders doing things that people might find to be more prurient than what a lot of drag queens are doing. You're going to see, if you take your kids to an R-rated movie, for sure, I mean, you are going to see things, yes, at this point, right?

0:40:43 Thomas: Or just every single commercial break on TV. Yeah. Oh.

0:40:47 Matt: Yeah. I mean like we're surrounded by things that are pruriant and that still have social and literary or artistic value. But they're picking on this particular kind of communication, this kind of conduct, this kind of expression for very good reason, because they want it out of the public square. They don't want people to think about it or look at it or have any association with queer people. And they don't wants kids to be aware of queer people. That's very much what this is about.

And there's no way that they can really say anything else. And even this Trump judge, again, in a very good decision, acknowledges that pretty directly. And he's saying, you guys, you can't say that this is not content -based, because you're treating speech literally, you're treating it differently, whether it's aimed at adults or minors, for one thing. You're not specifying how old these minors have to be, and maybe speech is different if it's targeted to five -year -olds or 17 -year olds.

Most importantly, viewpoint in this bill, you're looking at male or female impersonators as one of the things. And this is a crime, by the way. This isn't just some sort

0:40:47 Casey: Yeah Yeah.

0:41:39 Thomas: Wow.

0:41:39 Matt: Of civil statute. This is like you can actually do 11 months on this. This previous law restricted the zones where certain kinds of performances can happen, but this actually restricts the performers themselves. This is pretty unusual. And so it's not just fining the club for allowing this to happen, but you can actually go after the performer criminally. And the judge makes a really good point about using a hypothetical. And because we're in Tennessee, he talks about an Elvis impersonator. And he says, imagine that you have an Elvis impersonator that is like wearing kind of a sexy costume, to him. Not obscene, but just kind of exposure. Indecent enough to be potentially harmful to minors. So this individual's performing by telling jokes, being Elvis, singing Elvis songs, hanging out and doing the Elvis thing. And what would happen if that Elvis impersonator was a woman impersonating a man? Like suddenly that makes it obscene? Now we're getting to that point?

0:42:28 Thomas: You're under arrest, ma'am, jeez.

0:42:30 Matt: That's right. Now it's suddenly so much worse.

0:42:31 Thomas: Hope

0:42:31 Casey: Yeah. Well, and to be fair, it is, we've known people that are drag kings, right? Like, that's why I said that it's typically, but not, not always.

0:42:40 Thomas: You know, "Jailhouse Rock," ma'am, you're getting... Yeah, yeah. It's

0:42:44 Casey: I Mean, right. So it does, it seems like very clear that these, that these types of laws are targeted at generally gay men, although again, not always, generally, um, queer men that, that dress as, as women, but there's actually a whole host of other types of drag that has been done over the years, including even Cis even women.

0:42:59 Matt: Sure. Sure.

0:43:00 Casey: Right.

0:43:00 Matt: Yes.

0:43:01 Thomas: A very particular look, like anyone could dress like that, right?

0:43:04 Casey: It seems very clear they're targeting, they're specifically really gay men dressed in drag, whether they Say that or not.

0:43:08 Thomas: Yeah.

0:43:09 Matt: And he drops the footnote and actually asked that exact thing, what if it's women impersonating women, right? And there We are, those female impersonators too, right? What's going on here? Uh, he asks what if the Elvis impersonator does not dance, does this performance have any redeeming value to a five-year-old? These are the dumbass questions we have to ask when We're looking at these, these bills. It's unclear because, again, all of this is unclear because these people were rushing as quickly as they could to try to ban a kind of performance they didn't like. And that's what it comes down to. And it was clearly passed for an impermissible purpose. That's the only thing you can find.

0:43:13 Casey: Yep. Oh, my

0:43:25 Thomas: Yeah.

0:43:39 Matt: These decisions basically have to acknowledge the word drag is not used in the text of any of these because they're trying to keep it constitutional in a way that they could get it through. But if you look at the legislative history of every one of these bills, obviously, that's what they're doing. They're trying to ban drag performances. You've got people out there talking about it openly, you've got a bill that is not narrowly tailored enough, is clearly content and viewpoint restriction, and yeah,

0:43:38 Thomas: So Much so that a Trump judge is like writing an RBG-style dissent, you people going, "Yes, queen."

0:44:07 Matt: It's very good. It's a good read. I will link to it. But this actually was just up for oral argument in front of the Sixth Circuit back on February 1st. And the obvious question was asked because, again, one of the many problems with these bills is it doesn't really, if you're criminalizing the performer, you're not really saying where these things are happening. So it really could be anywhere. It's just essentially anywhere that children are. And he notes very dryly that there are several places that children could be in Shelby County.

0:44:33 Casey: God.

0:44:34 Matt: I thought that was pretty good. Several places. At oral argument, the state is immediately, almost within like two minutes or even sooner from the bench, they're fired this question. How is there any exception here for people doing things in their homes? Like, can we really criminalize people doing drag shows in their home? And the AG has to admit, yeah, no, it is the home.

0:44:49 Thomas: Wow. Yeah. Okay.

0:44:57 Matt: But it's not a constitutional problem, because there's no First Amendment problem with restrictions in your house, which, that's quite a claim.

0:44:58 Thomas: No. Jesus.

0:45:02 Casey: Wow. That is unbelievable.

0:45:04 Matt: Yep. If you let these people pass laws, this is what they will try to pass. They will try to tell us that there's no First Amendment problem with things that you do in your house. He just says it in the oral argument. I mean, it's incredible. I listened to it. It's really worth actually hearing him say. So, yeah.

0:45:08 Thomas: Yeah, I

0:45:17 Casey: Wow, that's really scary.

0:45:21 Matt: But, and it's so broad that it's like, it's in public property, or anywhere a minor can see it. Turns out you might have minors in your house, so Yeah.

0:45:26 Casey: And, and He just like

0:45:27 Thomas: No.

0:45:28 Matt: I know. Have

0:45:28 Casey: Couldn't envision like anything that one could be doing one's own house that would somehow violate this, like, because he hasn't, I guess he doesn't go to very fun parties or have, you people he hangs out with, like it's just Wow, yeah.

0:45:36 Matt: Fun yeah uh yeah almost pity him but

0:45:42 Casey: This is kind of sad.

0:45:42 Matt: Uh, yeah that kind of got me into all of this when I saw that he actually had to admit that it could cover something that happens in your house, because that's what they're trying to do. Again, good decision out of Tennessee. Good job, Judge Parker. Now we go on to Florida. And as you might imagine, Florida has its very own special kind of drag bill. Randy Fine on March 3rd, 2023 explained, very helpfully for the court, explained, I have filed HB 1423, which will protect our children by ending the gateway propaganda to this evil, quote-unquote, drag queen story time.

0:45:43 Casey: Wow.

0:45:51 Thomas: That's nuts here We go, books.

0:46:19 Matt: I will relish the battle ahead. That's what he actually posted on Facebook. So this is the bill that he passed to ban this gateway evil.

0:46:28 Thomas: Yeah, please.

0:46:29 Matt: Yeah, pretty much a similar kind of thing with adult live performances, banning adult live performance, and a misdemeanor offense events. The sort of thing that's distinct here is he talks about lewd conduct, which of course is extremely broad, or the lewd exposure of prosthetic or imitation genitals or breasts. So question what they're going for there, obviously, right? They're not talking about cancer survivors that are stripping, right, which again, as the court points out, that could include people who have prosthetics, who just have none in drag whatsoever. That's a problem in itself. Yeah, it sort of incorporates the Miller test, which the other ones didn't do so well in Florida. So being Florida, they tried to enforce this by sending undercover state agents to a show called A Drag Queen Christmas.

0:47:12 Thomas: Tell me they were in drag, please, dear God. Tell me they were drag.

0:47:14 Matt: That would have have been amazing.

0:47:15 Thomas: There's only one way for us to blend in, like earpieces and stuff. Well,

0:47:16 Matt: I'd watch that movie. You're on, you're on you're up. They did not observe any lewd acts or genital exposure, but they continued to try to prosecute it anyway, because they were expecting, I guess, the worst.

0:47:30 Casey: Like What do they think goes on at these shows? Like, they, I'm just, I'm so baffled by. What?

0:47:34 Matt: Well, I I mean, even the constitutional issue, the First Amendment issue of extending indecent exposure to a fake genital. I can't get my head around that either. I mean, that's just so obviously a problem. The court, again, in this case, was this a Clinton appointee, Gregory Presnell. Solid, very good opinion all the way through.

I'm not going to go through every piece of it, but I will mention my favorite part of it is that he has to mention that there is a direct conflict with the Florida Parents' Bill of Rights. And because, of course, all of this is a state where they're obsessed with the idea of parents' choice, that parents get to choose and know everything about their child.

The Parents' Bill of Rights was updated to include things like getting your child's medical records so you can find out if they told their school counselor about their sexuality, Right? Parents' rights are everything in Florida, except here, because this bill doesn't give you any exception to allow you to take your child to a show. It's just a hard, strict thing that children can't be in these places. And of course, he makes the point that you can go take your child to see Saw if you want to. You know, I've never seen a Saw movie, but I don't think they're appropriate for children, I'm pretty sure.

A parent, in their discretion and their judgment, could find that that's perfectly fine for a seven-year-old, I guess. They should have the same rights for a drag show. And so, otherwise, you know, it's just extremely overbroad, um, vague.

"A fully clothed drag queen with cleavage displaying prosthetic breasts reading an age-appropriate story to children may be adjudged wicked and thus lewd by some, but such a scenario would not constitute the kind of obscene conduct prohibited by the statutes" in cases like Miller, the obscenity test, the very famous one. "Um, the act's focus on prosthetic or imitation genitals or breasts raises a host of other concerns not simply answered. What are the implications for cancer survivors with prosthetic genitals or breasts?

It is this vague language, dangerously susceptible to standardless, overbroad enforcement, which could sweep up substantial protected speech." And I know you have to really stretch your imagination to think about standardless and overbred enforcement in Florida, but it could happen.

0:48:14 Thomas: Right. Yeah.

0:49:28 Matt: It's possible. So again, great decision, and the only possible one. And this is something I really want to reiterate. And the reason I chose this story is because these bills can be stopped, these movements can be stopped by the courts, as long as we have good judges doing the right thing and actually following the First Amendment. It's very, very hard to actually legislate against these things as long as they are what they are. I'll just stop here in Texas very quickly. Woodlands Pride v. Paxton, decided on September 26, 2023.

0:49:55 Thomas: Paxton, I know that name.

0:49:57 Matt: Yep, of course, so we got Paxton and Abbott are both in here. This is another one that imposes civil penalties for the hosts of these shows and criminal penalties for performers. Again, criminal penalties. The other reason I wanted to do this is because I'm pretty into First Amendment law, and you don't see a lot of obscenity cases anymore in 2024. It's just not really something that happens. Criminal obscenities.

0:50:13 Casey: I've seen one, like I've literally seen one ever and

0:50:15 Matt: Right.

0:50:15 Thomas: Yeah. Because no one can pronounce prurient. I'm telling you, that's what it is. They quit.

0:50:16 Matt: Right? That's right. They just can't do it. Yeah.

0:50:21 Thomas: Noped out of it.

0:50:22 Matt: Right, right. Not something that happens anymore. This one in Texas, this statute, SB 12, was signed by Greg Abbott on June 18th, 2023. And just, see if you can find the problem with this one. A municipality or county may not authorize a sexually oriented performance, that's kind of an issue, one on public property or in the presence of an individual younger than 18 years of age.

0:50:45 Matt: Or, not and, so either on public property or in the presence of an individual younger than 18 years. So that's a weird problem.

0:50:52 Casey: And does it,

0:50:52 Thomas: Once again, sounds like your, that house would be not covered by that.

0:50:52 Casey: Huh?

0:50:55 Matt: Would be covered. Yeah, no, there's no reason it wouldn't be. So that's sort of where the county's involved, but if you're talking about a private business, a person who controls the premises of a commercial enterprise may not allow a sexually oriented performance to be presented on the premises in the absence of an individual younger than 18. So like just hard, strict liability. If somebody under 18 is on the premise, when one of these shows is happening, you're liable.

0:50:55 Thomas: Yeah.

0:51:13 Thomas: When you're 17, you can't handle seeing a dude in a wig. That's just something that you'll never.

0:51:17 Matt: Yeah. No. It's Yeah.

0:51:19 Thomas: You can't handle that. No way.

0:51:20 Matt: There's no way that your parent could take you and explain to you what's going on or why it's okay or not okay, I mean it's just

0:51:26 Thomas: They It's really, I, I hope we can successfully rebrand and grab the idea that like, actually the left is the party of freedom. Like it really is, you know, the, the right is the opposite of that. It is amazing. There's nothing they want that besides, I guess, your freedom to employ children to work in mines or something. But other than that, there's nothing. They do that has anything to do with freedom. And actually it always goes the other way, it's always telling you what you can't do, what you can't even let your kids do with your permission, like it's crazy.

0:51:36 Casey: Yeah, yeah.

0:51:58 Casey: It's really wild.

0:51:58 Matt: Your house.

0:51:59 Casey: And the way that they're able to to flip things around. It's a really incredible skill they have, right? To be able to flip things around and make it seem like things that they are barring people from doing are actually somehow giving them more freedom is really impressive.

0:51:59 Matt: Yeah. No.

0:52:05 Thomas: Yeah.

0:52:13 Matt: It's yeah, and again SB 12 is just as bad as the rest of them, and one of the most interesting things to me though is it doesn't, it mentions prurient interest in passing, but it doesn't incorporate the rest of the Miller test. So the court is like, what are, are you even trying to do here, like if you're, because the other ones at least incorporated the language for the Miller test, you know that they're talking about trying to make this some kind of obscenity, which is difficult enough to do as it is, um, yeah, again all the same problems, content-based, viewpoint-based discrimination, impermissible purpose, not narrowly tailored to meet a compelling state interest, way overbroad.

0:52:31 Thomas: Mm -hmm.

0:52:39 Casey: Oh, wait, wait. Did you actually get to, because I skipped ahead in your notes, Matt, and the definitions of what is a certain and sexually oriented performance includes holy shit, like some of it makes sense, some of the stuff, like you know, people having sex with each other on stage, like that makes sense, um, you know why it probably wouldn't be appropriate to have a child there, but um, for instance, the exhibition of a device designed and marketed as useful primarily for the sexual stimulation of male or female genitals, um, Holding vibrators I presume, or something it could be construed as a vibrator, um, exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics, and

0:52:40 Matt: Yes.

0:52:56 Thomas: Sure.

0:53:07 Matt: So, holding a vibrator, yes. That that

0:53:21 Thomas: Exaggerate.

0:53:23 Matt: On like larger breasts if you're a woman, apparently. Right like It's a good thing Michael Jackson didn't live to see this, apparently.

0:53:24 Casey: Then Gesticulating apparently, or not even like wow, wow.

0:53:27 Thomas: Yeah. Wait, if you're a drag queen and you're like, no, these are like, this is like a modest B cup, that's this fine,

0:53:36 Matt: Because you just can't go any bigger, yeah, that's right, but yeah, just even like sexual gesticulations, I mean that's again very well established rock star material, um, no, it's, it's so overbroad, it's so vague, there's so much stuff in here that's just clearly was never going to survive. Texas does this all the time, as we know, in Florida too, just passes things like this, that they, they now aren't going to make it. But yeah, all have the same problems.

They're fundamentally all flawed and they cannot pass these tests and the courts have noticed. And that's why none of them are in effect right now. Montana did the same thing, not even going to touch Montana's right now, but I wanted to make a point on the way out about Antonin Scalia, of course, because I just think this is interesting, as somebody who cares a lot about the First Amendment, as somebody who cares about freedom of sexual expression, and as somebody who cares about video games.

So you might remember that Justice Scalia wrote the majority opinion in Brown v. Entertainment Merchants Association, a Supreme Court case in 2011, and that was California's attempt to ban sale of violent video games to minors. Makes the point, and this is a very interesting sort of American thing, I'm not sure how many other countries think this way, maybe everybody, I don't know, but speech about violence is not obscene.

So like I said, you can take your kid to see Saw, you can buy your kid a super violent video game, as long as they're not looking at breasts, then we're fine,

0:54:45 Thomas: Yeah.

0:54:46 Matt: Right? And he's saying this explicitly that obscenity in this country is sexuality, it is sexual content.

0:54:46 Thomas: God. It is so backwards, yeah.

0:54:55 Matt: Is, because there's so many things. I mean, I consider extreme depictions of, I'm pretty squeamish about visual depictions Of Violence. I consider that to be far more obscene than almost anything I can imagine sexually. To see people blown apart or tortured or traumatized, like you're saying, it's too much. And I think it's just an interesting comparison. He goes on to say that we tell our kids Grimm's fairy tales about people being cooked in ovens and poisoned and... Right.

0:54:56 Casey: Yeah.

0:55:03 Thomas: Way more traumatizing Nah, we don't. We, we, Disney, I think, rewrote a lot of those. You know, I Think those original Grimm fairy tales are holy shit.

0:55:28 Matt: Pretty Grimm.

0:55:29 Thomas: Talk about obscene. Yeah.

0:55:29 Matt: Yeah. He the point that in Odysseus that Homer sticks a stake into a guy's eye, right? I mean, it's things like that, right, just real violent stuff that we just accept. And the Bible, too, of course, as we know, is full of these things.

0:55:39 Thomas: Well, it's a Cyclops, right? Isn't it?

0:55:41 Matt: Right, of Course. So he had it coming, but yeah. He's making The point, I think, in a really interesting way. It just made me think of all of this. When I'm thinking about these relatively tame expressions of people just joyfully getting up and enjoying, you wearing the clothes they want to wear and telling the jokes they want to tell compared to just horrific depictions of violence and torture and dehumanization that, and again, that's all First Amendment protected too. I'm just making the point here. And the year before, in Stevens v. U.S., they had found that extreme depictions of animal torture, which I don't want to dwell on very much, it's horrible, but particularly the content in that one, that wasn't obscene, because again, it is not sexual, and because even though the conduct being depicted is illegal, obviously animal cruelty is illegal. The depictions themselves of the conduct were not illegal and survived the First Amendment challenge.

This is kind of where we're at, that all these things for better or worse, but these states just cannot have the idea, and they want to criminalize the existence of queer people.

And I really wanted to talk about this as a follow-up to the Project 2025 discussion, because that's something I meant to say at the end of that discussion, is that when we're talking about things that we can do right now, practically, to help our friends and neighbors and the people around us standing up against this kind of thing I think has to be top of the list right now.

The ways that they're coming for people that they find to be immoral, for people whose lifestyles or choices or just the things they were born with they don't agree with, because that's how fascism works.

0:55:42 Thomas: Had it coming. Yeah. I

0:57:04 Casey: I mean I don't know how you feel, Matt, but I, I personally think, end on a somewhat more positive note, actually, than find it hard to believe that the Supreme Court, even in its current composition, would uphold statutes like this. I just think, and not that, I was about to say it would be unprecedented, but I'm not sure that matters so much, but even this court, I just don't see it. I think that it would be such a slippery slope that I think it would give even the most extreme members of that court, court, at the very least, would give them pause, I would think.

0:57:18 Matt: Yeah, I agree.

0:57:35 Matt: They'd have to extend Miller beyond anything. I mean, it would have to be a completely new standard for obscenity, and I don't think we're there yet.

0:57:41 Thomas: Think you'd get Alito, Thomas, and maybe one more, but I feel like Gorsuch would. I mean, yeah, these, these things have to mean something. Like the first time. I mean, that would be pretty insane to go down that road.

0:57:47 Casey: Yeah. And I just think that they would be able to think of all kinds of ridiculous examples of things that they enjoy or things that don't bother them that potentially be banned under either one of these statutes or a statute like it. So yeah, hope there's not really any court that would be comfortable with this.

0:58:11 Thomas: Yeah, but I mean we can't, obviously we can't rely on that, Eileen you Cannon exists, and I feel like if we give Trump another shot, who knows who he's getting in, in there, you know.

0:58:14 Casey: Nope. Nope. Yeah.

0:58:20 Matt: Absolutely, Absolutely. Absolutely. And that's, I mean, this is all a positive story for now, because I do not believe these kinds of laws can survive under current law and being administered fairly. But we have to have the right judges for that.

0:58:31 Thomas: Absolutely right. Well, thank you for the breakdown. And why don't we, let's all end drag. Let's go. Let us go through a break. Ready? Go. We'll all do it in the privacy of our own home and piss off these Florida Republicans.

0:58:40 Casey: All right.

0:58:43 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.