SIO142: Andrews Seidel and Torrez on Masterpiece Cakeshop

Transcript

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

[0:00:04] You're listening to Serious Inquiries Only.

0:00:30 Thomas: Hello, and welcome to Serious Inquiries Only. This is episode 142. I'm your host, Thomas Smith, and I am so excited to have not one Andrew, not two Andrews, but two Andrews. I joke like there's going to be three, but no, it's still just two.

0:00:46 Thomas: Two Andrews here, and they are two of the top Andrews in all of Andrewdom. They are, of course, Andrew Torrez. How are you doing, Andrew? I

[0:00:52] am fantastic. I am happy to be the second best Andrew on the podcast. Oh, that's so nice. And Andrew Seidel of FFRF, who I don't, you haven't been on this show, right? No,

[0:01:04] I have not. Yeah, I didn't think so. This is my first time. I've been wanting to have you on. I'm very excited. So, Andrew, how are you doing? I'm doing well. It's also nice to be the second best Andrew on this show. Two Andrews, each better than the other. And no, we, so we started this conversation over on Opening Arguments, and there's just so much to talk about. And there's a lot more for this show that we can get into that's more secular community community-related that, you know, is not necessarily what we do over on Opening Arguments. So, I thought it would be perfect to kind of continue that on. The first thing I really want to ask, so, sorry, I should summarize just in case you're coming over fresh or you haven't heard it, go listen to Opening Arguments. That will be episode 180 that Andrew Seidel is on talking about the results of the Masterpiece Cake Shop case. Go check it out right now before you do anything. But okay, assuming you've done that and you've paused, we discussed the fact that this was a 7-2

[0:02:01] decision. And weirdly, somehow, the Supreme Court said, we won't actually decide anything meaningful.

0:02:09 Thomas: We'll just say that somebody was mean to somebody else. And therefore, you get one free discrimination is ultimately where it comes down. I don't get how that works. So actually, my first question to you guys, and I'm not sure who wants to tackle it, because I don't know who knows what but here, but, but how does it work? And this may be a basic thing when it comes to the Supreme Court. Do they all, okay, so all the justices, are they, are they talking this through as they're going? Are they, are they like ruling on their own? Like, okay, on this issue, the establishment issue, for example, you know, I'm Ruth Bader Ginsburg and I say this is nonsense, you know, or something like that. And then is it just in the end, they find out where they all came down and that's how the decision is reached?

0:02:49 Thomas: Otherwise, I don't understand how it became seven

[0:02:52] and two. Can you describe that process? So, yeah. So what actually happens is that after

0:02:58 Andrew: Oral arguments, the justices get together. They sit around a conference table and

[0:03:04] they throw out like, oh, so, all right, what do we think about Masterpiece Cake Shop? You know, sort of raise your hands.

0:03:10 Andrew: Where are we going? I'm 100% serious about this, that they kind of informally go around the table. And

[0:03:17] It will happen sometimes. It's very, very rare. Uh, but um, it will happen sometimes that uh, that the cases will realign where, uh, you know, as you kind of dig into, you know, one side starts writing the opinion, uh, that that that somebody will defect and go back to their side. But, but yeah, so that's what happens is they'll go around the table, they'll be like, okay, who's going where, uh,

[0:03:42] okay, this is six-three, uh, who wants to write, and then, and then, the, the among the majority they'll say, okay, who wants to write for the majority? Uh, and whoever is senior, the senior judge, right, gets to assign it. Isn't that the way it usually works? I think, yeah, yeah, um, or chief I guess, right, but, but typically, you know, it it, it really is like who is most interested in this case. Okay, yeah, I mean, at least, I, I should, I should mention this, this way, I was not a Supreme Court clerk, I clerked for the Maryland Court of Appeals, uh, which is our state Supreme

[0:04:12] Court, and um, and that's how, you know, that I, I used to love conferences. Um, and then, uh, and, and then, uh, and then what happens is the judge who picks the writing, the majority opinion, will then go back and pick his clerk or her clerk and say, uh, okay, guess what, we're coming out this way in this case, uh, why don't you give me, and then, depending on, uh, depending on the judge, some judges, uh, will take, will give clerks kind of the first crack at writing the opinion. Other judges will want, uh, what we used to call, my judge was always like this, he wanted a bench memo, uh, which is, you, you didn't get to write the, uh, basics of the opinion. You

[0:04:56] you got to write a memo that, that contained all of the voluminous legal citations for each and every proposition that was likely to be discussed in the opinion.

[0:05:10] And my judge, and I clerked for a very conservative, but not originalist, an old school conservative judge on the Maryland Court of Appeals, and his view on dissents is one that I kind of wish had not gone out of favor at the Supreme Court level. Judge Lawrence Radowski and his philosophy was, I would only write a dissent if I could taste the bile in

[0:05:34] the back of my throat, right? If it was just halfway up the throat, if I was just really, really mad, I'd let it go. But if it was almost spilling out into the front of it, that's when I would write the dissent. And I always liked that approach. And I think our current Supreme Court could probably

[0:05:53] use a little bit more of that. But yeah, so that's how these things get, that's how the sausage gets made. So,

0:05:59 Thomas: Okay, to set up a little more again, and of course, for anyone who doesn't know, I talk about all the time the Freedom From Religion Foundation is one of my favorites. I'm a household member, so that includes Baby Opening Arguments, Phoebe Smith. I include in that. I love the organization. And naturally, Andrew Seidel, this is not exactly the way you would have wanted it to go. But let's talk about that. So we've seen people celebrating and the way this went down, it's almost like no one should be celebrating, right? I mean, like the idiots like Dave Rubin have been celebrating this as, oh good, businesses have the freedom to discriminate because for some reason he really really values that. But even that is not really right, right? I mean, even though the gay couple

[0:06:44] lost, did anybody win, really? No, I don't think so. And actually, the owner of the bakery, Jack Phillips, was on Fox and Friends after, I don't

0:06:57 Seidel: Know if it was Monday or Tuesday after the decision, with his ADF attorney talking about this. And it was only about a five-minute segment, but it was really interesting to watch because he kept saying, you know, I can't wait to get back into the wedding game

[0:07:09] I mean, we got to go read the opinion and see if, uh, you know, I can And he's really not sure, he doesn't, it's not, he doesn't realize whether he won or not. And that's because he basically just got this one-off, hey buddy, you got a free pass on this one, but it is by no means clear that if this case were to be restarted and replayed again, with gay marriage being a right in Colorado and the United States, and with the commission

[0:07:40] towing the line and not doing anything to offend anybody's religious sensibilities, that he would have the right to refuse this couple. It is by no means clear. I mean, there is some good, there's some really good language that we didn't discuss on OA, about that Kennedy used, saying that that the Colorado Anti-Discrimination Act is legitimate, and that it is completely unremarkable that they They have chosen to protect LGBTQ people under that law. And that is, in one sense, a really reassuring thing to hear from the Supreme Court in this opinion. So I think it's fair to say, really, I mean, it is a win for the baker in the sense that he got off on this one. Uh, but it is not in any means the decision that they wanted, um, nor is it at all clear that if this case were to replay that he would not, Colorado Commission on Civil Rights

[0:08:36] would not come down hard on him again, just using the road. Yeah, they would have to tip, which, by the

0:08:42 Thomas: Way, we even, uh, over on OA, I mean, we even reject the idea that they were in any way disrespectful, disrespectful toward, toward the baker, I mean, it's just nonsense. And I, don't so game theory wise, I guess, how do you, how did this happen? I mean, is it the kind of thing where they're talking around the table, as you said, all the justices, and uh, the ones who aren't, uh, batshit insane are like, well, yeah, naturally this is stupid, so, uh, let's find in favor of the, of the gay couple. And then is it just a case where it's kind of game theorying

[0:09:14] out like, well, we didn't have the votes, so then we also, I mean, that's, that's the big, that's a big question, because. So, I mean, we can't know for sure, but, like, if you were to take a guess. The question presented in the case, the two questions and the two arguments that were briefed were the compelled speech, the free speech issue, and

0:09:33 Seidel: The free exercise of religion issue. Those were the two big things. Those were the two questions presented that the Supreme Court accepted cert on, and they didn't touch them. So everybody's just like, why did you even take

[0:09:45] this case if you weren't going to decide the questions? Questions? Okay, so two things. No, number one, I, I want

0:09:51 Andrew: I think this is a really a great venue to talk about the compelled speech. Yeah, right, and, and I

[0:09:57] want to, I want to have us kick around that, that football, you know. Yeah, I have a good quote to launch into that, uh, but so let me know when you're ready for that. But go ahead, but before we get to that, I, I thought it might be worth kind of drilling down into something that I think is fun to talk about, but really isn't going to have precedential significance, which is the, uh, the Breyer and Kagan concurrence, and the issue with, in, in the specific record in this case, we, we alluded to it a little bit on OA, but we really didn't talk about it. There was also a troll, a guy named William Jack, who ran around in Colorado and was making the moronic argument that you see on the far right that said, oh, well,

[0:10:40] if you're making baker make a gay wedding cake for somebody, then I'm going to go to every baker I know and make them bake a hate cake that says, you know, God hates fags on it, or, you know, Leviticus, whatever, and, you know, an anti-gay cake, right? And so this troll went around and asked a bunch of

[0:11:02] bakers to make his hate cake, and the bakers refused, and then he filed a complaint with the Colorado Civil Rights Commission, and the Colorado Civil Rights Commission was like, get the fuck out of here, right? Yeah, what

[0:11:14] impact does that have? Why would that even be a part of this? Like, the reason that it's a part of it is because Gorsuch and Thomas believe that there is, that it, that it shows, and, and they wrote a separate concurrence to say, we think part of the religious discrimination here is the fact that the Colorado Civil Rights Commission treated the troll differently than it treated Phillips, the, you know, Christian baker in this case. And I love the fact, I mean, Elena Kagan, I think, when she was like, you know, I was Solicitor General of the United States, and I've got to write in print that these two cases are different, but she wrote an entire concurrence, only a couple pages, but she wrote a concurrence to say, I cannot believe that Neil Gorsuch is stupid enough to not see the difference

[0:11:58] between these two cases, right? And, and she almost says that, right? Yeah, I mean, right, she says, I, I highlighted quite a lot of it, she says, Justice Gorsuch disagrees In his view, the Jack case, is Jack is the troll, and the Phillips case, Phillips is Christian baker, must be treated the same because the bakers in all these cases, quote, "would not sell the requested cakes to anyone," end quote. That description perfectly fits the Jack cases and explains why the bakers there did not engage in unlawful discrimination, but it's a surprising characterization of the Phillips case given that Phillips routinely sells wedding cakes to opposite sex couples. Justice Gorsuch can make the claim only because he does not think a wedding cake is the relevant product. As Justice Gorsuch sees it, the product that Phillips refused to sell here and would refuse to sell anyone was a, quote, "cake celebrating same-sex marriage," end quote. But that's wrong. The cake requested was not a special cake celebrating same-sex marriage. It was simply a wedding cake, one that, like other Other standard wedding cakes is suitable for use at same sex and opposite

[0:13:02] sex weddings alone. I could go through. But again, I wanted to read from that opinion because on OA, I kept saying, Thomas, that you weren't being hyperbolic. And I wanted to be clear, since I'm on your show now, that I wasn't being hyperbolic. This is really Elena Kagan going, I thought everybody kept telling me how smart Neil Gorsuch is,

[0:13:28] and I just don't see it. I mean, that really is his, his Gorsuch's concurring

0:13:34 Seidel: Opinion is one of the dumbest things I have ever read out of the Supreme Court. I'm not, I'm not kidding. That is not an exaggeration. I mean, he

[0:13:40] Talks about, he's trying to talk about that product, and Kagan tore him apart there very nicely, and she continued. And he's saying that, well, we could talk about cakes as flour and eggs, and that's too far on the end of the spectrum, or we could talk about them as a wet gay wedding cake celebrating a gay wedding for the homosexuals, and that's too, that's where we're actually talking, when really it's just what Kagan was saying, which is, it's a wedding cake, dude, like

[0:14:06] there's no difference between a gay wedding cake and a wedding cake if it's a wedding cake for a

0:14:12 Thomas: Couple that, uh, one, one of the members has been divorced before. Is that a special kind of wedding cake? You know, like, is that a wedding cake that endorses divorce and remarriage in

[0:14:25] a way that you could not want to be a party to, even though it's the same cake? And I mean, this is part

0:14:31 Seidel: Of, I think this is part of what the commissioner, the commissioner's quote about it being despicable to use your religion as rhetoric to discriminate against somebody.

0:14:43 Seidel: I kind of important there because the baker is not taking his Bible literally, consistently

[0:14:50] right, right at all, right? He, he does plenty, he makes plenty of cakes for couples who are getting remarried, who have had sex before marriage, all that kind of stuff. He just wants to be able to discriminate against a gay couple, and he's using his religion as an excuse to do that. And I mean, that is a fair, also a fair reading of what the commissioner was saying, and is not hostile to his religion, it is what he is actually doing, and it happened to be a true statement as well. Anyway,

[0:15:19] yeah, yeah, no, I, I mean, in my view, you know, that that really kind of transitions us over

0:15:26 Andrew: To the to the compelled speech area right because that's the endorsement is the argument for compelled speech, right? It says, if I do this, then somebody else who observes it will attribute to me support or endorsement for the thing in

[0:15:44] which my product is being used, right? I mean, I would hate for the Supreme Court to have come out the other way, but I would like to see that argument fully litigated before the Supreme Court, because to me, it is just so patently untenable, right? I mean, that is literal. We read on OA the admonition from, from Kennedy, in writing for the majority, that said, uh, we're not going to craft a rule that lets you put up a sign that says, you know, we refuse to serve homosexuals,

[0:16:16] uh, but that, I don't see, there's no way, I mean, right, yeah, yeah, that's exactly right, like, that's, but so let's talk about the difference, right, once, um, because I've got a quote here from, from everybody's favorite, uh, non-entity, Dave Rubin, um, no, I thought you were gonna say Justice Thomas

0:16:34 Thomas: Maybe. I don't know. We'll see how similar it is. I don't even know that any of the justices were this stupid, but let's see. But I bring it up because Dave Rubin, you know, while I think everybody realizes he's not any sort of atheist leader now, he is somebody that atheists are still watching. And there are, I have gotten in my comments a lot of responses to what I've said about this. I have gotten this, in my opinion, really stupid and fact ignorant libertarian kind of response. And Dave Rubin is nothing if not that. And he said, he was responding to all kinds of, you know, celebrities and people who had said, like, I can't believe this decision. And, and he said this, he said to Gavin Newsom, he responded, hi, Gavin, they weren't denied a cake, they were denied a specific custom message. Should a Muslim baker have to bake a

[0:17:23] custom cake for a gay atheist wedding? Should a Jewish artist have to take commissions for a neo-Nazi? How about we let people make decisions for themselves? This is 2018, and somebody is still this fucking wrong about this

[0:17:37] uh, this case? So does anybody want to tackle all the several levels of, yeah, completely missing, missing the point? That is so, so first of all, I've been on Dave Rubin's show, and I, we talked about, I didn't even know that, wow, um,

0:17:51 Seidel: And I tried to bring him around on this, um, this was, this was a long time ago, uh, must

[0:17:57] have been, must have been January of 2017, something like that, February maybe, um, and he I mean, he, I think he's absolutely wrong generally on this issue, um, but on in that tweet specifically, it really did bother me to the point where I actually, I corrected him and did an entire thread about this. Because that is, it's completely, it's factually incorrect. First of all, I mean, you can look at the stipulated facts in the case. And they specifically say that the baker and the couple never discussed any type of message that was going to be on the cake. Read it.

[0:18:35] Read Ruben's phrase about the message again, Thomas. Oh, yeah, "a specific custom message." Yes, not at all, not true. So you've already told him this? I, yeah, I quoted the tweet and then I did a whole 10 or 15 tweet thread about it last night, um, and did you tell him this on his show? We didn't get in this deep into it we were kind of we didn't discuss the the facts of this case as in depth as we as we should have. But no, I mean, so factually, that is 100% not correct. There was no discussion of the message.

That is one of the reasons that the Colorado Appeals Court rejected the free speech argument of the bakery, calling it specious, which is pretty strong language coming from a court, especially when you're talking about something like free speech, because there was absolutely no discussion. And another phrase was that the bakery categorically refused to serve them. Him. There was no discussion between the parties about what the cake would look like. That is the quote. Um, and that the lower court then said, uh, the bakeries, quote, "claim that they refuse to provide a cake because it would convey a message supporting same sex marriage is specious." Um, I mean, and those are in the stipulated facts, that's in the lower court decision. Those are the courts that are, you know, are tend to be more familiar with

[0:19:52] this, this, so, I mean, first of all, so that, that is wrong, factually, um, the, the, then there's the two hypotheticals, um, should, should a Muslim have to bake a cake for a gay atheist wedding

[0:20:04] uh yes if a muslim is in the business they should Good. That's the point. What was the other one? A Jew have to do something for a new Nazi? Yeah, that's the one. They always bring up the Nazis, and we always have to say Nazis are not a protected class. Nazis are not a protected class, yeah. And then you have to do the Indiana Jones gif about Nazis. I hate these guys.

[0:20:26] I like the Blues Brothers, Illinois Nazis. I hate Illinois Nazis.

0:20:31 Thomas: How many times, and I start to get a little frustrated, and I'm sure your listeners can sense my frustration here on so many levels, with Dave Rubin, of course, and other people in atheism, how many times do we have to say this? How many times do we have to say, no, here's what the facts were. The guy, the baker, found out they were gay and said, no, sorry, get out of here. I mean, you're singling

[0:20:52] out Rubin here, but it's not just him. No, it's not. Yeah, it's not just him. But it's not just, this is the, this

0:20:58 Seidel: Is how the religious right tried to twist the argument and twist the case. Their case was not sympathetic and not popular in the way that it was first litigated. I mean, it is very, it was very clear he did not have a free speech argument based on the actual facts of what happened. So they twisted the facts and started litigating at it both at the Supreme Court and in the public arena, this law school hypothetical that did not happen. And I've been spending, uh, every Monday for the past however many Mondays, when it's Supreme Court decision day, sending out a tweet thread and putting it up on Facebook, reminder that no matter what the Supreme Court says in this case, this is actually what happened, and these are the facts, because I have done this long enough and worked intimately on enough of these cases and seen, I think we discussed it last time on Opening Arguments, the Supreme Court twist facts to get to reverse engineer a case. I've seen it happen, and I was very concerned about it in this case. So I've been spending a

[0:22:00] lot of time trying to correct just the factual record here. Yeah, no, no, no, you have. Um, I, there

0:22:07 Andrew: There are a couple of things that that I feel like I've I've sort of learned about, uh, that that uh have made me reflect on how I've tackled this argument in the past and how I want to tackle it in

[0:22:19] the future and and maybe change my approach. Don't use the word amateur when speaking to, yeah, right, certain people. So and there are really two things here, right? So the first is, um, differentiating between laws and the Constitution, right? Like what, what makes Masterpiece Cakeshop such a potentially, potentially terrifying decision, uh, is that it, it applies above,

[0:22:45] it applies a robust free exercise or whatever kind of right it is that is created in that case. And to, to understand our lack of, uh, you know, understanding on that, you have to, you know, go to the companion OA episode. Uh, but whatever that right is, that's now a constitutional right that Anthony Kennedy has created, and so that

[0:23:06] prevents you from passing a law. Um, and and the answer to Dave Rubin's question, I think is not at the constitutional level, right? Like I think I think the way I would answer Dave Rubin's question

[0:23:19] is, you know, what if, if all we had were the Constitution and the Bill of Rights and the amendments, right, like even including the 14th Amendment, um, then you'd be be right, right? Like there is no constitutional right to require a private employer to not discriminate against

[0:23:38] anybody that he wants, right? So it comes from the Civil Rights Act, right? Yeah, we passed the Civil Rights Act of 1964, and we and we decided, by the way, some people think that was a good idea, right? And not just, I, I would say again, you're not being hyperbolic, right? Like, like, you will not find outside of outside of unreconstructed racists and a couple of like goofball libertarians who are so far off the the reservation as to, you know, not be visible from this planet, like other than that, there is broad consensus among everybody left, right, center, extreme right, whatever, that that we're a better society for having the Civil Rights Act of 1964. And like that, I think that's kind of the first place that I would start with, is this idea of, okay, like let's let's parse out what we're talking about, right? Like we're we're not talking about, is there a constitutional right for you to access process

[0:24:33] a bake shop, right? Like it isn't, we could have, it would be consistent with the founding documents of this country and with the framers for us to have a society in which every, in which nobody has any rights, once

[0:24:46] once you're outside the the public square, once you're dealing with private parties, but you know what, like as a part of our social contract, we decided that wasn't the kind of society that we want to live in. If that's a society you want to live

[0:24:58] in, like, go ahead and make that argument, you start campaigning to repeal the Civil Rights, right? Yeah, but know where you are on that. Yeah, right. So and and oh, good, sorry, finish. Yeah, and and then and the second thing that that I think where I've sort of become more reflective about is I feel like I, and and certainly some others, but but I was guilty of this, so I'll take all the blame, I was a little flippant, uh, when this This case was first brought, the Supreme Court first granted certiorari, and we first started discussing it on opening arguments in, you know, describing, in saying there's no free speech issue here for the cake baker, right?

And, you know, we had the, like, I forget who made the crack of, you know, comparing cake artistry to, you know, at Subway, they call them sandwich artists, too. Like, yeah, yeah. And that was funny, and it was, you know, glib. And in retrospect, like, I think I'd like to take that back, right? And I think what I'd like to say is, you know, this is the perfect situation where I think I would want to call for a balancing test, right? Like I would say, hey, look, like you're right, right? On some level, you know, when you have to do something that does chip away a little bit at

[0:26:12] the principle of your unfettered First Amendment rights, right? But understand how far that extends, right? Right. Like the endorsement argument. If you're a Klansman and they pass the Civil Rights Act of 1964, then like when your other fellow Klansmen walk by your restaurant and see that you're serving black people. Right. They're going to say, oh, I guess Thomas isn't really that great a Klansman after all. Right. Like there is going to be they're going to impute some kind of value to the fact that you're not,

[0:26:43] you know, standing up for your Klansman philosophy by. I don't know. I feel like you're being

0:26:49 Thomas: Way too generous. Like, to me, this is like, uh, I was just in New Orleans and a bunch of shitty souvenir

[0:26:55] shops.

0:26:56 Thomas: It's no different than if a souvenir shop sells a shirt or a sign that says happily married. And then you go to buy it, and the clerk notices you're, you know, you're a man with another man. They say,

[0:27:09] I'm sorry, I don't, I don't support that, I cannot sell you this because it would support your, uh, views, it would support your gay marriage, which I don't support. But no, like, look, let me push back on it and let me cut to the punch line first, right,

0:27:22 Andrew: Which is I, I think we should acknowledge that there's a First Amendment issue here, but just say that this is something where we've decided to strike the balance as a society by saying we, we want you to give up a little

[0:27:34] bit of your associational rights in order to have, uh, you know, okay, so if you're saying you, you shouldn't have said there's no First Amendment issue, like okay, because it does, look, I relate, there is an imputational thing, right, like, and and even if you're just selling an off-the-shelf cake, right, if somebody goes by and they look at it and it says the Smith Bakery, uh, in the cake box at, you know, at at the gay wedding, they're like, oh, yeah, okay. Well, you can go to the Smith Bakery and they supplied the cake for this gay wedding. There is

[0:28:05] an implicit association, just the same, it's in the same way though that if I buy a t-shirt at Target and wear it at a gay wedding, then they think the Target support, like it's so tenuous, right? So, and in the absence of a statute, I guess that's kind of my point, the way I would put those two together, right? Like in the absence of a law, right, then, yeah, you, you know, Target would be able to say, not going to do that, right, not gonna, not gonna sell the happy marriage shirt to a gay couple, but we have those. And it's an unequivocal good thing that we have those laws. And what conservatives and libertarians, what the small government people want, right, the self-professed small government people want, is for an unelected judiciary

[0:28:50] to step down and say, no, you can't make those laws, right? Yeah, I think that, I think that's right, Andrew. Yeah, I mean, and I mean, this is what I wrote, this on the All You Need to Know About, all you

0:29:02 Seidel: Need to know to win an argument about the gay wedding gate case, because this, the libertarian argument was popping up so much. And I think it's, I think you should just divorce it from the free speech thing altogether. And, you know, this is people who profess to be against discrimination personally, but they think that the government shouldn't be able to tell people who they can serve or not serve.

And I, I think that's what we should have been pointing out from the beginning is, okay, that's a debate that we can have, but that has nothing to do with the gay wedding cake case. Nothing. Like the argument in that case that you want to have is about the underlying statute, the Colorado Anti-Discrimination Act, which, like all civil rights acts, protects certain classes of people, and those laws are valid and they are enforced. Force. What you want to argue about, libertarian, is those laws should not be valid or enforced. And that's fine, but that's not an issue in the gay wedding cake case or an argument that any court has ever agreed with. So just recognize that you are in the minority on that and that is completely irrelevant to the

[0:30:05] gay wedding cake debate. I would love... So Andrew, you've been on Dave Rubin's show, so pretend you're Dave Rubin,

0:30:11 Thomas: Yeah, I had no idea that was true. I didn't do my research. That's insane.

0:30:17 Andrew: How would you answer, okay, imagine that you are a Mormon circa 1978, right? You think blacks cannot hold the priesthood, right? You think that there should be open segregation on the basis of your religious beliefs. Let's say you are the chair of Bob Jones University pre-2000. You think miscegenation, you think blacks, in both of these cases, it is blacks have the mark of Cain for Bob Jones, for the Mormons, it's that they are Lamanites, but that they are cursed by God to have black skin, in right, and so you do not intermingle and, uh, you know, miscegenate the races. Should you be able to say, yeah, nope, not gonna sell my cakes to an

[0:31:07] Interracial couple. And I don't, I mean, take, why don't you take it away? Oh, I mean, I don't think, I don't think there's a good argument to

0:31:13 Seidel: Come back on that. I mean, I, I, I think they are, I think you said unequivocally a good thing, and I think, I, I think that's absolutely true.

[0:31:22] You know, go ahead, Thomas. Well, yeah, no, I think we've talked about it on OA before

0:31:29 Thomas: That there just is no way to say this would be OK in a case of a gay marriage, but not in an interracial marriage on these facts.

0:31:38 Seidel: Yeah, but I think that I think the thing that we should have been doing the whole time is saying, look, that's a debate that we can have. Fine. But you need to first understand and admit that you understand so that, you know, we're We're not sidetracked by this, that that has nothing to do with what is happening in the Masterpiece Cakeshop case. That is how we should have been approaching, I

[0:31:56] think, this from the beginning. Well, hold on, is that true? Because, how, well, like, if a law were unconstitutional, or, or, or if you believe the law shouldn't exist, how would you, get it but it doesn't matter because, whatever they, whatever, whatever they believe about it, that's not actually an argument that's happening in the case. And the courts do not think those laws are unconstitutional. No court

[0:32:15] has, has it come? I mean, so you're saying, like, even if people have challenged, people have challenged the Civil Rights Act on their religious freedom rights. And the court has literally as close as you can in print left those arguments off.

[0:32:27] Um, so I mean, so that's just, that's not a thing. I haven't even gotten to the third prong. So we've covered two

0:32:34 Thomas: Ways in which Dave Rubin's tweet was completely, completely, uh, just completely ignorant, there's a third, even more impossibly ignorant way, which is he's taking a victory lap on this decision which

[0:32:46] we've, as we've covered, that he shouldn't be doing that because all they did was essentially say, technicality, we're not gonna make, like, what, like, no, but they didn't win, the baker didn't win, so this victory lap, here's another tweet by Dave Rubin, "A win for personal freedom, the government shouldn't be able to tell a private citizen or

[0:33:05] business what services they provide." That's just ignorant of what happened. Right, it's hard to read those two tweets and think that he read the decision. Um, yeah, I mean, it really, it really is, that those that's just, it's not what, it's not what happened. I mean, to me, I just, I just, read that, remember that this is, this is the crew that, that, uh, enjoys that, openly says, oh,

0:33:30 Andrew: I just, I like this, because it triggers the libs, right, and in my view, that's the only way that you can, you can view that as someone who's like, oh, look, right, score one for our team, regardless of

[0:33:42] what it says. Unfortunately, like, Supreme Court jurisprudence doesn't work that way. Yeah, um, yeah.

0:33:49 Seidel: I mean, I, I don't know if, I don't know if you can splice this into the show, but if you, if you can, I think it's worth doing, because what, finding that Fox, for Fox and Friends interview, that, that the baker and the, the ADF attorney did. Cause it happens twice. It happens once, kind of like maybe two minutes in, and then once right near the end of the interview, where he, he just says, he's like, "Yeah, I can't wait to get into, back into the wedding cake business." And you can see the wheels turning in his brain, and he's like, "Wait, I'm actually, I'm probably not gonna be able to do what I just did and

[0:34:20] got away with." Like, you can, you can see the cogs turning. So he just got one free pass, class, essentially. Yeah, I mean, yeah, and he, he doesn't, I, I think you can watch it, I mean, he does not believe, maybe you can hear it, uh, on the podcast, you know, I don't think

[0:34:32] he believes what he's saying. Yeah, so here's what I want to ask, though, from the other side, because

0:34:38 Thomas: I, it's hard to know how to feel about this. I'm deeply disappointed, because I don't feel this shit, but while, as I just said, I don't think the Dave Rubin libertarians can really take a victory lap, because this was essentially, "Oh, you forgot to fill out something on the paperwork," sort of, like, like it's essentially some unrelated thing. Therefore, we're not, we're just punting, we're not even deciding on the facts, essentially. And so neither side can take a victory lap. The only person who kind of can, I guess, is the actual baker, who avoids some sort of, what, some penalty, punishment, something, I mean, I guess. But other than that, if you're not literally that guy, then nobody won

[0:35:16] or lost. But I still, is it still valid? Valid. Um, how do you guys think, as a, somebody who's like a gay rights activist, uh, or somebody who supports gay rights, which I really hope would be everybody listening, how should we feel about it? I mean, is this a, a blow to gay rights just because they didn't even take the opportunity to just say, yeah, obviously this is a stupid argument and the, the gay couple should be able to go to a cake shop. I mean, how, how should gay rights advocates feel about this? I think it's good in

0:35:47 Seidel: One way, and it's kind of scary in two sort of real world ways. I mean, it's good because there's a lot of language in there that suggests that Kennedy says, like, these are legitimate protections, they're in place. It's sort of that argument that we're just saying is not the time and place to have this libertarian argument that these laws are and constitutional, uh, you know, Kennedy brushes that aside and says, of course we can protect LGBT community, of course they deserve this protection, that's, that's not a thing. Um, so I mean, that, that's, I think a positive takeaway from the case. Um, the, the two, the two sort of real world downsides to the case are it does cloud what I think was a clear issue, you know, with a little tiny bit of courage, the court could easily have said like, yeah, yeah, your religion does not give you an excuse to violate other people's rights. And yeah, you know, your free speech rights don't include denying service to people because your holy book says you don't like them. Yeah. This

0:36:49 Thomas: Is what blows my mind. And sorry, I'll let you get in there on this, Andrew. But why, so the way the technicality of this works, why don't we also know how the justices feel on the issues? Because

[0:37:01] we talked about two different issues, establishment and Well, I mean, that's legitimate because the goal of the court is to decide things as narrowly as possible, usually. So if they find a way out of it, they don't have to say anything about the case. So as you pointed out, why did they even bother? Why bother?

[0:37:18] Well, I mean, I think that this and the fallout that we're seeing is the second real world issue that I'm

0:37:24 Seidel: Concerned about, because I think we know what's going to happen next. You know, the bigots and the illiterati are going to run with their misconceptions of this opinion, and the religious right is going to do its best to use the case to find a better vehicle to get the Supreme Court to decide a case that does redefine religious freedom or free speech as a license to discriminate. So I think we are going to see as an outcome of this opinion

[0:37:48] more discrimination against gays. That doesn't mean that it's constitutional or that it will be upheld by state civil rights bodies like the Colorado Commission here, but I think we will

[0:38:00] certainly see that. Yeah, I agree with that. There are two things that I really

0:38:07 Andrew: Think of here. First, that to the extent that you can make a positive takeaway from this, we can use this sort of as our continuing illustration of

[0:38:19] the Overton window of describing the Supreme Court, right? Right. Because in mainstream press, we describe the Supreme Court as 5-4 and Anthony Kennedy is the, you know,

[0:38:32] centrist.

0:38:33 Andrew: That's not remotely an accurate description of the Supreme Court. And this decision kind of helps illustrate this. Right. Like the Supreme Court has three committed hard right judicial activist ideologues. Right. It has Gorsuch, Alito and Thomas. It has a very, very far right chief justice in John Roberts. And then it has a solidly right of center justice in Anthony Kennedy, who is, I mean, a predictable, long history with a conservative voting record who has some idiosyncrasies. And that's your swing vote. Your swing vote is on a scale of 1 to 100. You've got three 99s, a 95, and a guy in the 70s. And then the court's liberal wing is really just Ruth Bader Ginsburg. Right? Like the rest of the court's liberal wing are certainly liberal by comparison, but there is nobody, you know, you want to argue Ruth Bader Ginsburg is as far left as, you know, Gorsuch is right. I wouldn't make that argument. I don't think it's borne out by the fact, but fine, I'll give you Ginsburg. Right? Right. But you certainly can't say that about Stephen Breyer.

[0:39:49] You certainly can't say that about Elena Kagan. And, and, you know, it illustrates we have a, a, a far, well, we have a right of center Supreme Court. The center of gravity has already shifted, uh, and, you know, and has the potential to become, you know, a truly terrifying Supreme Court over the next couple of years, uh, so, you know, so, once

0:40:14 Thomas: Again, though, now I'm even more confused. I, this is what I meant to ask, because, yeah, we talked about the, you know, quote unquote prejudice, the quote unquote prejudice of the, uh, commission, right, that was the hostility, the hostility, how did seven justices agree to that? It's

[0:40:33] absurd. I don't understand it. Like, why, what, you know, I mean, I think it could be a bit of real politic, you know, they're, they're

0:40:39 Seidel: I think, which is what Andrew was kind of hinting at earlier on, you know, they saw this might be going five-four the wrong way, and they wanted it to go seven to, uh, middle of the road, bad way, but not anywhere near as bad as it could have been, then there also is the, not the conspiracy theory. Oh,

0:40:58 Thomas: Interesting. So, yeah, well, so at the end of that segment in OA, you did have a very, very positive theory that I don't know that I can latch on to, but it is interesting for people to consider. But then, so is it fair to say it could have worked like this? Like, if you think of it as, you know, what they ruled 7-2 on was the prejudice of the commission, right? They said that, I still don't get it, but okay, that's what they ruled 7-2 on. Is it fair to say that in their roundtable discussion, as we said, if that first issue had been like four to five or something, so that it wasn't going to win the day, that particular issue, then they would have looked at the other issues and maybe those would have won five to four. And so therefore, it was smart to then go ahead and say, never mind, the commission was prejudiced against religion to sort of avoid that

[0:41:54] second layer of analysis. Is that what you're saying? Yeah, and I don't think you have to go into quite

0:42:00 Andrew: As many, you know, thinking moves ahead. We knew when we were initially discussing this case a year ago on OA that it was going to come down to what is Anthony Kennedy going to do, right? Right. So you're watching one person and making one determination. And here's another. Again, I want to, I want to plug, you know, it's another, Andrew Seidel was right. I have consistently been on the side of saying oral argument doesn't really matter. I'm consistently getting my butt kicked in these big cases. Um, Andrew pointed out that, uh, that at oral argument, much of Kennedy's skepticism, uh, that was directed to the lawyer for the, uh, Colorado Commission, uh, was directed on this issue of, you know, was

[0:42:50] there hostility to religion, uh, below. And, uh, and so, you know, if you know, you don't get to be on the Supreme Court without being reasonably intelligent, unless you're Clarence Thomas, so you

[0:43:03] Know, it, it, it does. I know, I'm 100% serious about, I know, that's why I fight, me on that one, I know you're serious, but, uh, but, but, yeah, so, you know, so you're really, you're just, you don't have to put a lot of pieces

[0:43:16] together, you just have to stick your finger in the wind and go, "Oh, shit, it looks like Kennedy is going in this." However, though, however,

0:43:22 Thomas: Though, I thought you were saying that a lot of the language Kennedy used was saying, yeah, no, this law is valid in this. So is there something in this opinion that tells you Kennedy would have gone the wrong way

[0:43:34] on establishment or freedom of speech issues on this? So I don't know,

0:43:41 Andrew: Right? And I realize that's not a great answer on an opinion show, but Anthony Kennedy has consistently voted on the side of equal rights for LGBTQ individuals, individuals, um, so you can read this in one of two ways, right? The the optimist way would say, if there was no other way to split the baby, then he would have come out on the other side, regardless of

[0:44:06] his misgivings as to what the Colorado Commission mission did. The most pessimistic view would be, and I guess the the analogy I would make is is to, you know, the the people who consider

[0:44:19] them, consider themselves centrists, who say, "Oh, well, look, like we no longer have a race problem in America, like we had a black president, so it's all fixed, right?" And, and there's, at least, I'm curious your guys' thoughts on this, but, but this case made me, at least, wonder if Kennedy, weary of being

[0:44:37] you know, the the the tug-of-war fulcrum, uh, hasn't said, "You know, look, like I signed on to a Bergafell, like we've got gay marriage, like the gay problem's fixed, and now I can move on to something else," um, and that would obviously be really, really disappointing and troublesome if, uh, if, if

[0:44:56] that's where his mind is. And, again, you know, we're all trying to read tea leaves, but I don't know what you think about that. I mean, I, I think he loves

0:45:03 Seidel: I think he loves having cases written to him and argued at him specifically. I mean, Doug Laycock wrote a brief in the Masterpiece Cake Shop case. That was the brief that was the one that argued hostility. It was the only one. And Doug Laycock is one of the foremost scholars and attorneys when it comes to religious liberty and freedom. I think he's wrong a lot of the time. He has far

[0:45:28] too expansive a view on it, but he wrote – Did you, did you see Laycock's editorial

0:45:34 Andrew: On, uh, in SCOTUS blog that, that he, yeah, it's, I'm curious your thoughts, but I,

[0:45:40] I, I had trouble reading it. I mean, I, I've actually, I've actually, um, I, I did a panel with him, uh,

0:45:46 Seidel: Oh, this might be too far in the weeds, but I did a panel with him at, um, Thomas Jefferson's country home, not Monticello, but this place called Poplar Forest, which is in Lynchburg, uh, Virginia, home of Liberty University

[0:45:58] too. And it was he, John Ragasta, who's a Thomas Jefferson scholar, and I in Thomas Jefferson's salon talking about religious freedom to a group of about 50 people. It was really cool. He was super wrong on a lot of this stuff. But, I mean, he wrote this brief to Kennedy. This was of all the briefs. I mean, it was not a principal party brief. It was not the United States amicus brief. It was Doug Laycock and a couple of other scholars talking about how the commission was so hostile to religion.

And that was the one that Kennedy picked up on. I mean, I think he loves having stuff written to him and for him. So I don't think that, I think that's one of the reasons he's probably unlikely to retire also. So I don't necessarily think that's the reason. And, I mean, you could also read this the other way. You could also read this if, you know, if you want to be an optimist saying, like, hey, religious right, like, this was a bad case to bring. We're not deciding it against you right now. Like, we decided gay marriage. This is done. We're not deciding this against you right now.

But if you bring another one of these, like this stupid florist case that has no free speech claim really at all, you know, we're going to come down against you. This is your get out of jail free card. Don't screw it up. Don't bring us another one of these. Um, I don't think they will read it like that. I think that's a dangerous way for us to read it. Uh, it's a dangerous kind of optimism. Um, but you know, the decisions, it's so weird from start to

0:47:24 Seidel: Finish, um, in so many different ways.

0:47:28 Thomas: Yeah. Well, you know, one thing I just have to ask you, Andrew Seidel, because I've been so curious about it and I'm not, you know, I'm not trying to get you to do any shit talking or anything like that, but I've been so curious about as, as someone who works for the FFRF and doing the valuable work that you do. I had mentioned to you the fact that Sam Harris had Ben Shapiro on his, well, his live show and Ben Shapiro had kind of talked Sam Harris over to his side of this masterpiece cake shop. And I'm just wondering, what

[0:47:58] are your thoughts on the state of like the secular movement when a, what was, and I guess, I mean, still is a massive, you know, massively popular atheist leader, in Sam Harris is somehow

[0:48:10] getting it wrong on this. Gosh, I mean, have you seen any fallout from that? What are your thoughts on that as someone who's just doing this work? Well, I mean, there's always the old joke about trying

0:48:23 Seidel: To get atheists together is like herding cats. And it annoys me how often we hear that, but it is difficult to get us to agree on anything thing other than, you know, religion is bad. And I don't, I didn't, you know, I should have come on and talked about that when we were chatting about it, but I don't remember the exchange that fully and whether they were talking about a free exercise of religion. My recollection is that they were talking more about the free

[0:48:48] speech arguments, which again... Yeah, it was what Sam specifically said was along the lines of, obviously,

0:48:55 Thomas: The way forward in getting getting people to kind of get along and interact with each other is not by

[0:49:01] forcing them to do something like this. Like that was essentially what, what he thought. And, and yeah, I mean, and even that's

0:49:07 Seidel: Not necessarily, I mean, that's more talking, that sounds to me more like talking about how do we solve when somebody, how do we solve the issue when somebody violates this law? What's the, what's the appropriate remedy for the Colorado Commission on Civil Rights when a bakery says, no, I'm not going to serve gay people. Should we force them to serve gay people? Should Should we revoke

[0:49:26] their license? Should we fine them? You know, what's the... I don't think that's what he meant, but I guess that's an interesting question.

0:49:32 Thomas: What should we do to a bakery if they say no blacks allowed? I mean, to me, it's the same question.

[0:49:38] I don't disagree at all. But it goes back to how good a job the other side did in this case of clouding what actually happened and taking completely pushing

0:49:51 Seidel: Aside the actual facts and getting people to debate law school hypotheticals that it could then throw out and talk about people serving neo-Nazis and kosher butchers and all this stuff that is just completely irrelevant to the actual decision and make it seem as though it is this profound debate about freedom, which was not what was happening in this case. It was about discriminating against a couple because the bakery did not like them. And what I

0:50:22 Thomas: Had said, though, and what I had said, though, and why this disappointed me so much was, yes, you know, it's like herding cats. But the one thing, the one thing I thought atheists could all agree on was, let's get religion out of government

[0:50:34] and let's not allow religious people to discriminate. Yeah. Well, that's why I was asking about whether he was more on the free speech side or more on the religious exercise side. I think it was more free speech. I think it was maybe the best thing you can hope for is maybe he had the wrong facts and thought it was, the Fox News version of the case, which I think was two gay men came in dressed like they were at a pride parade, probably wearing almost nothing. And then they wanted to put on the cake what Andrew said, which is doing it in the butt is awesome. I'm hoping maybe he just had the Fox News version of the case, in which case I still wonder, okay, then why would Sam Harris have the Fox News version of the case? But I guess that's the best case scenario.

[0:51:18] I mean, I think a lot of people just did not understand the facts of this case at all. They understood

0:51:24 Seidel: The talking points that were being repeated to a certain extent.

[0:51:29] But, you know, again, the right divorced the facts from the law here entirely. And that was a public campaign and it was very, very successful. I think you're right.

0:51:42 Thomas: I think you're right. But this wouldn't happen with an evolution case. This wouldn't happen with teaching evolution in school and then the Christian right, as they always do, would drum up some weird alternate set of facts about it. And you would not have found Sam Harris and Dave Rubin. Well, I don't want to speak for him, God knows what he would do, but you wouldn't have found Sam Harris saying, oh no, yeah, we shouldn't be making them teach that because that's not the way forward. What is it about this issue?

[0:52:11] That's what worries me. I think because free speech is different for a

0:52:17 Seidel: Lot of people. I mean, I am not a free speech absolutist in the ridiculous sense. I think there's one absolute right. I think it's the right to think freely under our Constitution. That's the only absolute right that we have. But I think I would defend the right of a Nazi to be able to say what they want to say, to be able to have a parade if they if this town allows parades I don't like that speech, and I do think the appropriate way to defeat that speech is with better speech and with better ideas and drowning

[0:52:45] it out. And I don't have a problem with any of that, and I think, I think the other side of, in this case, was able to tap into that willingness of our side to stand on principle and make this, this try to make this case about that principle. That's what I'm trying to say when I think they were very successful at divorcing the facts of what actually happened and making it about a legal hypothetical that didn't exist. They tried to make it about that principle when it was really not, when, you know, the facts, so.

0:53:16 Thomas: That surprises me. So what you're saying into that, okay, that's interesting. So the, the distinction we need to be making, you know, if, if we're going to try to, and I, I mean, we, as in like the three of us here who I think pretty much agree on this issue and also I think pretty much agree on free speech issues. What we need to be working on is making that distinction and clarifying things like this, that you can both be in favor of free speech,

[0:53:41] but not be in favor of this kind of discrimination. Is that essentially what you're doing? Yes. I think that's a good way to put it. I mean, I am 100% in favor of free speech. Absolutely. So if there's a- I've taken free speech

0:53:53 Seidel: Cases before on behalf of FFRF. I would fight for that right, certainly. That's just not what's

[0:53:59] happening in this case. So if there's, like, a freelance, uh, journalist or something, who somebody

0:54:06 Thomas: Asks hey will you write uh something about gay marriage in a positive way totally different set

[0:54:12] of facts, you would say no, of course they can refuse that. I mean, it is a different set of facts. I mean, first of all, I mean, are they a public place of public accommodation? All, there's a lot of different questions, but that's what I'm saying is we need to, I guess, in the future, I mean, you already were, but I guess we all need to try to make sure we can get that message out loud and clear that, no, this is the actual facts. We need to echo and signal

[0:54:37] boost the real facts. And that's what I've been trying to do before the decision came down. And I think that that's what

0:54:43 Seidel: I was trying to talk about with the libertarian argument before, getting them to say like, okay, that is an important debate that we can have. Should the government have the power to compel speech? And is this compelled to be? That's an important debate that we can have. But let's just agree first, that that's not at all what happened here. Because the parties in the case agreed that that's not what happened here. It wasn't until later on when they realized how bad that agreement was, and how dumb it was, and how awful it is to try to make that argument to the Supreme Court that they started changing tack and tried to get away from those stipulated facts. And I

[0:55:18] think so. Yeah, I think, and how you do that in, you know, this culture and, on, yeah, when there's so many voices on Twitter just saying the complete dumb and wrong thing. I don't, I don't know how you do that, but I think that is

[0:55:31] I mean, that is what I've been trying to do it anyway. Yeah, no, I agree. That's why I love what you do. So we're, we're nearing

0:55:37 Thomas: Time, but I do want to ask you both, what do you think this means going forward? I think we touched on that on OA, but I I don't think we spent a whole lot of time on it. You've mentioned a florist case. I mean, what's that

[0:55:49] going forward? What should we look out for? I think, you know, what this has done is kick the can down the

0:55:55 Andrew: Road. There will be a day of reckoning where the Supreme Court will have to tackle head on what counts as compelled speech and on what grounds. You can assert your First Amendment right not to be compelled to say something that contravenes your sincerely held religious beliefs or contravenes any of your, you know, any belief that you may have, right? Like this is a First

[0:56:21] Amendment free exercise claim, not a, sorry, this is a First Amendment freedom of expression claim, right? It's the inverse of that. And I think our side needs to do a better job of sort of sharply delimiting the lines and saying, we want to protect you against compelled, mandatory, compulsory expression, right? Like the journalist example that you just gave. I should not be forced to take runoff clients from the, uh, Alliance Defending Freedom and I have to go into court and write a brief, you know, saying how, you know, Christians are the most persecuted minority in this country or whatever, right?

Like, that in my view, like, that's, you know, that was sort of the, the David Smalley, right? Like, I don't want to have to produce a pro religious religious podcast because I do that, right? Like that, that's the the misconception I see again and again of, boy, if we don't find in favor of the florist, if we don't find in favor of the hate baker, then everybody who does anything with any discretion is going to lose all of their discretion to whatever the prevailing winds are, and I think we need to sort of say that, that, that's

[0:57:35] a slippery slope fallacy here's where the bright line is and it's not even on the same slope like it's not even Yeah, I agree.

0:57:42 Andrew: But I think, but that's what you see again and again, right? That is the fear of, you know, first they came for the florists

[0:57:48] and I said nothing and, you know, so. What do you think, Andrew Seidel? Go ahead. Well, I'll say two things on that. One,

0:57:54 Seidel: I mean, the Supreme Court had a chance to decide the compelled speech argument a couple years ago with the photography case out of New Mexico. Ago. If they wanted to decide it that way, I think it was a better case than even the bakery in terms of making a compelled speech. I mean, photography is at least recognizable as art. I mean, there are art exhibits that are just photographs. There are no art exhibits that are just cakes. Cakes are meant to be edible.

[0:58:20] Man,

0:58:21 Thomas: You haven't seen the Great British Baking Show, but okay.

[0:58:24] I've seen highlights of it.

0:58:27 Seidel: And then, you know, so, you know, if you move a little little farther along the spectrum, I think the florist case that the Supreme Court's considering whether or not to take is even less than a cake. I mean, they're just, you're cutting flowers and putting

[0:58:39] them in. I mean, maybe, maybe I'm wrong that I haven't, haven't looked into the flowers as art argument as much, but I, so I think, you know, in terms of the quality of cases on the compelled speech argument, the, the quality of cases, if you are on that side is getting worse that are coming up before the Supreme Court. And Andrew Torrez, you've always been more concerned about compelled speech. I've always been more worried about the religious free exercise claim because I view these cases, given who is bringing them, ADF is basically a Christian ministry, and what they have been doing for the past 10 years is a deliberate campaign to redefine religious freedom, to weaponize it, to make it, to give people the ability to use their religious freedom to impose on others. I mean, we've talked about this extensively. And to me, that is the scarier case. And that argument hasn't changed and doesn't change anywhere along the spectrum. And I think it might be an

[0:59:41] easier decision for this Supreme Court to make rather than the compelled speech one. And that's one of the reasons that FFRF dedicated its brief to opposing just the religious argument, the religious free exercise argument that the, the Masterpiece Cakeshop made in this case. So if that day of reckoning comes, which I think you're right, what I'm more worried about is

[1:00:06] it, it being a day of reckoning that completely alters the right to religious freedom. Yeah. And, and I will say that argument has already found two converts, right? Yes. Neil Gorsuch and Clarence Thomas. And, and I, I just wanted, I, I, I don't think I have

1:00:25 Andrew: A sarcasm voice that is appropriate enough to read this passage from Gorsuch's concurrence, but this

[1:00:32] is literally word for word. What Neil Gorsuch says, He says, popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country's commitment to serving as a refuge for religious freedom. So that is brave Neil Gorsuch standing up for the oppressed 38%, you know, hardcore Christian right that is essentially running this country right now. Now, the poor, oppressed, unpopular, extreme Christian fundamentalist view

[1:01:03] that, you know, you could take you could take that language and put that into a William Brennan opinion from 1971.

1:01:11 Andrew: Yeah, I'll be here only in service for, you know, the the voting bloc that controls

[1:01:18] all three branches. Yeah, I I'm still I'm sorry. We got we'll get out of here. But I still am confused about when you're

1:01:24 Thomas: Talking about the art thing. I mean, if I own an art gallery and I sell paintings, those are definitely art. But if I say gay people, you can't come in my building and buy my paintings. Doesn't seem like it matters that I'm selling art.

[1:01:37] Am I crazy? What am I missing? No, I think the only, I think the only distinction is the, and you saw this come up a little bit

1:01:46 Andrew: As, as Andrew has alluded to, you know, they obscured and then actually went back on the stipulation of the facts. The difference between selling an off-the-shelf cake, off-the-shelf art, and off-the-shelf product versus creating a custom product. And that, you know, that's all over the concurrences. And, you know, it clearly is the strategy of the other side to try and muddle that line to say, you know, everything is, you know, tantamount to creating a new product, product. And I think you're absolutely right that, you know, part of the way in which we make that clear dividing line is by saying, yeah, look, like you want to talk about a hard case where, you know, you're actually putting words into somebody else's mouth, um, we can talk about that. I'm, I'm willing to listen to you on that. But can we agree that I sell you the art, you know, somebody else's artwork off my wall, that

[1:02:42] you know, that might be endorsing you, but, but it's not speech. That's kind of the approach, I would think. All right, we'll have to come back when there's a case that's exactly the facts that everybody thought this one was. That'll be interesting.

1:02:55 Thomas: But even then, I don't know if they'll actually tackle the issue. So anyway, thank you so much for coming on, both of you. And of course, Andrew Torrez owes me for embarrassing me in front of Andrew Seidel on the bar question. But Andrew Seidel came on just because he's a nice guy. So I want to double thank Thank you, Andrew Seidel. And

[1:03:14] do you want to point people? Of course, find him on Twitter, FFRF, support the great work. Is there anywhere else I should point people? No, but we would really appreciate it if people would join FFRF. We need all the support we can get with this Supreme Court. We really do. Yeah, absolutely. I couldn't echo that enough. I already have. I encourage everybody listening to do so. A really great secular organization. All right. Thank you guys so much. Thank you. Thank you.

[1:04:00] all right that's my show. Thank you so much for listening. And of course, thanks most of all to my patrons and supporters at SeriousPod.com/support or patreon.com/seriouspod. You guys make the show happen. I hope you're enjoying the bonus content for you only every month as a token of my gratitude. And thank you to my Andrews. We could talk about all that stuff forever. And mainly that means I could listen to Andrews talk about that stuff forever because there's so much to that weird decision. I'm still frustrated, but also, I mean, I guess there's a silver lining. Signing either way. It was a good discussion. Thank you for listening. And until next time.