Advisory Opinions - Jurisprudence of Doubt

Episode Date: February 26, 2020

David and Sarah have a lot on their plate. Can Bernie Sanders assemble a coalition similar to Obama's 2008 campaign? Will the Supreme Court draw a line between religious freedom and nondiscrimination statutes? And who is David Ayres? Learn more about your ad choices. Visit megaphone.fm/adchoices

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Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See Home Club for details. You ready? I was born ready. welcome to the advisory opinions podcast this is a momentous day so as you've already heard, we have new permanent introduction music, intro music, as part of our motto of give the people what they want. The people asked for custom music for this very custom podcast, and we have delivered. I haven't actually heard it yet, so I hope it's good.

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You've been in politics too long. You saw straight through me. Also, I want to start by thanking everybody. This is the new era. I'm not supposed to call it a paywall, so I will not use my normal method of describing it as like an iron curtain descending over Europe or like the black gate of

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listenership. And so let's keep that momentum going. And please subscribe to the podcast and rate us on Apple Podcasts. And so without further ado, today's podcast is action-packed. It's three topics, Bernie, liberty, hockey. So some of you may already know what the last one is, but it's like my favorite story of the last five years. But we're going to save that to last. But let's start with Bernie. Sarah, this is your wheelhouse. Tim Miller had an article in the Bulwark of several days ago where he said the Democrats have 11 days to stop Bernie Sanders, and that was about five or six days ago.

Bernie Sanders. And that was about five or six days ago. Do you agree that he's about to reach a tipping point? So tonight is the South Carolina debate. Right. And then we'll have the South Carolina primary. I do think that if Joe Biden does not win the South Carolina primary, does not win the South Carolina primary. It's hard to imagine a world in which, even if Sanders comes up short of the delegate number to win the nomination outright, and we can get to that in a second, that if in fact he wins South Carolina, I don't see how he doesn't get to that delegate number. But even in the chance of a brokered convention, I think it would be very hard to argue that the person who got the most votes in all of the first four contests and most likely then on Super Tuesday, just because of the proportional delegate rules, shouldn't be the nominee. So I think Miller has a point overall. But, you know, South Carolina hasn't happened yet. March 3rd hasn't happened yet.

And Bernie's had a bad week. Yeah. Yeah. Well, so let me before we get to Bernie's bad week, which I really want to hear your thoughts on it. Let me ask you another question. So we have talked in the past about one of the things that ends presidential campaigns is no money.

So we know that Mike Bloomberg is not going to have that trouble. But here's my question. If Bernie wins South Carolina, if he does very well on Super Tuesday, does the prospect of a brokered convention start to go away simply because Democratic donors will stop giving to the people who've gotten consisting 11 percent or 12 percent. And some of these campaigns will start to run dry and sort of just the economics of the race will take over. And Bernie, you know, Bernie two months from now will have much less opposition in the later primaries. And much the way that we saw that Trump, even before Trump had clinched the numbers, had clinched the majority, the opposition had largely dropped out. His latter primaries were sort of running against

token opposition. Yeah, we're moving into a new phase, though, in terms of what the money is for. In the first four contests, the money gets spent a lot on organizing on the ground, voter turnout. That's why these caucuses are so weird. It's a lot of, I mean, one by one, getting your people into a high school gymnasium. When you move into March 3rd, Super Tuesday, you're moving into clumped states from that point forward for the most part. That is a TV amount of money that you need. that point forward for the most part, that is a TV amount of money that you need. As someone said, I think it was Klobuchar announced yesterday, she was going to spend $4 million on TV ads.

And someone was like, so no money. That's no money in TV time when you're talking about Texas, California, I mean, just massive media markets. So no question you would run out of money to make a sizable dent in a TV market. Right. But you can still have an earned media strategy, which is largely free. Yeah. And run a very shoestring budget because you don't need the same ground game in all of those states. The ground game isn't going to make that much of a difference in a California or Texas type state, you know, a large media market state. So and don't forget, obviously, Trump 2016 ran almost no money in the primary and was an all earned media strategy strategy, maybe with an asterisk, but it was a very effective earned

media strategy. So I don't think that they have to drop out. I think there will be enormous pressure loan to get some of these more marginal candidates out will, the shame campaign online to get some of these marginal candidates out. And, you know, we kind of laugh at that, but that's where a lot of these guys sort of live is, you know, these campaign staffers and a lot of these journalists, they kind of live online. And there's going to be an enormous amount of peer pressure for them to bail if... I think a lot of, though, I don't see Warren, Klobuchar, Biden, Buttigieg getting out of the race if Steyer and Bloomberg commit to I think there is a pride issue that I that I feel that I would feel that I'm not I'm not I'm more qualified. I'm not getting out. If these two guys are going to stay in splitting the vote anyway.

No way. So but that gets us to why they're all staying in, which is this hope of a brokered convention at this point. It's why at the last debate when they asked, do you think the person with the most votes should become the nominee no matter what? Sanders was the only one who said yes, because the rest of them assume at this point that they will not be the one with the most votes. Why is that? So the Democratic Party is different than the Republican Party for their primaries for many subtle reasons. But by far the most important one now is that their delegates are all done proportionally. That's not true on the Republican side. There's thresholds, there's winner take all states, etc. democrats have have made it all one thing and

it's all proportional with some thresholds so you can end up much more easily in a fractured field with a brokered convention so there's 39 3 979 delegates that are allocated before the convention. So you need 1,991 of them to win. Now, a lot of those are going to be done on March 3rd. Not quite a majority, but like a lot. If Sanders is not sweeping by that point, if something goes wrong in Texas or California and you end up in a brokered convention situation you want then if you're one of the other candidates to still be in the race and still have delegates that you're amassing even if it's only one or two

per these states so that you come in with the strongest hand. Because on that second ballot, and here's another change, there's the super delegates that we heard so much about last time. That's 771 party leaders, elected officials, and they don't love Bernie Sanders, to put it lightly. So we are, you know, 2020, we are far more likely to see a brokered convention than we have in any of the cycles in my lifetime, and certainly far more than 2016, even though people talked about that a lot. So now the question is, can Sanders avoid that entirely? I think, you know, money on the table today. Yes, it looks like he is going to get enough delegates and there won't be a brokered convention. But, and this is where we get to Bernie's bad week.

There's been all this talk for the last several weeks about why are all of these candidates attacking each other and not attacking Bernie if he's the front runner? And that felt like it shifted in the last couple of days. Well, and the media, the media started to ask him some pretty hard questions and he doubled down on Castro. Yes. And that's just one. I think it's a very telling example, but, you know, for a long time there had been this medicare for all conversation bernie's out of step because he wants this wacky medicare for all policy so it went and that never caught traction because when you ask people about medicare for all as a catchy name they really like it if you start asking about the details less so and less so but like because people kept using the phrase

medicare for all they were actually actually helping Bernie, if anything. So now he started doing these interviews where he, you know, arguably defended Castro. I don't want to like characterize it too much. But where he said he does not support the authoritarian aspects. But, you know, Castro wasn't all bad. He had this literacy program. support the authoritarian aspects. But, you know, Castro wasn't all bad. He had this literacy program. And all of a sudden it was no longer about Bernie's out of touch, far, far left policies that people were able to attack him on because that wasn't getting any traction.

Now it's about Bernie's electability. Did he just lose Florida, for instance? Democratic members of Congress have come out and said, nope, that's not what we say about Castro. So it becomes a much, much more about like tangible electability, not something a poll says, not general election matchup polling, which I am very, very skeptical of. I think Bernie actually has a great shot in the general election against Trump. But electability in a much more tangible sense of the coalitions the Democrats need in order to win. I wanted to talk to you, though. OK. Because I saw a tweet.

I think it was last week that you sent it out. And it said that you felt pretty strongly about Republicans hoping, cheerleading Bernie winning because he'll be the easiest to beat. And there was a moral component, not just an electoral component of that for you. Yes. Yeah. So I have strong objections to cheerleading for the worst candidate. I had strong objections to that before 2016, but they've been redoubled in 2016 because I think we need American democracy as much as possible needs its two main parties to be healthy parties led by reasonable leaders. I'm trying not to ask for too much, Sarah. I'm trying to ask for healthy parties led by reasonable leaders. I'm not going to ask the Democrats to agree with me.

But to say that I'm going to cheerlead a particular party going off the rails for the reason that it increases, in theory, my chance to win, ask the Democrats how that worked out for them in 2016. I mean, they were extremely confident, extremely cocky, right up until about 10.30 p.m. on election night when it all came crashing down around them. And so I think that if we're cheerleading for unreason or what we view as radicalism, then what you're cheerleading for is a non-zero possibility in reality in our highly polarized country that one of those radicals will become president of the United States. And you'll have cheered all the way right until that hope turns to ashes on election night. Back in the day, National Review had a cover story about Howard Dean. I don't know if you remember this. And it was in this. Yeah.

And it said, please nominate this man. And essentially saying, hey, Democrats, go ahead and nominate the most radical candidate because George W. Bush can steamroll him. You know, look, if we didn't know before, we know now anything can happen. And I want to, I would like to see the Democrats nominate the most thoughtful, reasonable, and well-informed of the available candidates. Because even if somebody that I wouldn't otherwise vote for becomes president, I think it's just flat out better for the country. And there's a lot of

people, there's kind of a back and forth on the right about this online. You see, for example, Ben Shapiro tweeted something very much along the lines of my thinking, that you just don't want this. And so this idea that whatever the Democrats do that I believe subjectively makes my life easier in November is not a way to run a constitutional republic, in my view. I think the problem has been that both sides have seen that argument used successfully pre-2016, maybe you could argue, like the Todd Akin situation where, you know, Claire McCaskill was able to beat Todd Akin because Todd Akin was the least electable Republican primary option. I think Donald Trump is the reverse example. And I think your point is that the risk that Todd Akin would get

elected should have outweighed the benefit that Claire McCaskill was maybe more likely to get elected, regardless of which side you're on. Yeah. I mean, before 2016, there's a lot of data points to suggest if you went for the more radical candidate, you almost guaranteed the other side winning. I mean, was it Christine O'Donnell in Delaware? Yep. I am not a witch. Right.

Sharon Engel in Nevada. So you had this. But I think one of the things that's important for people to realize is that these state races are different from the presidency. Negative polarization is so powerful and people are so desperate that the other side does not gain control of the White House, the most powerful office in the land, that they'll vote their own team when they might abandon their own team for the White House.

Right. The difference in power between a senator and a president at this point in our country's history is just not even comparable. I mean, judges alone for Republicans, for instance, induce people to vote for a president that they would not necessarily vote for a senator for. to vote for a president that they would not necessarily vote for a senator for. But to Bernie's electability chances, I think it's actually really interesting. I am far more bullish on Bernie's overall electability. That being said, you know, his turnout numbers in the primary so far have been disappointing. Iowa was up 3% compared with 2016.

And that looked like, according to the New York Times, who looked at it more closely than I have, that increase was largely concentrated in non-Sanders precincts. In pro-Sanders precincts, precincts that Sanders won, turnout was closer to one percentage point up, maybe. So that's not a great sign for enthusiasm. Same type thing that we saw in New Hampshire and Nevada, definitely up from 2016, but not anywhere close to 2008 levels. And with a fractured primary that is so competitive,

if there were this huge surge for Sanders, if he were really expanding the Democratic primary electorate, those numbers should look different. That doesn't mean that they can't start looking different. Or as some have pointed out, Democrats are still incredibly enthusiastic about beating Trump. They just don't really care who it is that goes up against him. They'll vote for Sanders.

They'll vote for Biden. Whatever. And so there's that argument. I think when you look at the general election average polling matchups, a lot of people are trying to make mountains out of two to three point molehills. And my only point on when you're reading those polls, even the average, A, oftentimes the difference between candidates is within the margin. Even where it's not, the difference is usually not on Trump's side. So they're not moving from the Democrat to the Republican. They're usually moving in between someone else, don't know, wouldn't vote. Yeah.

And those are definitely within the margins when you go look at those. And they're largely driven by name ID. Not always. But the candidate in October, the Democrat, will have near 100% name ID. She does. So to try to run a poll on them now when their name ID is closer to sometimes 40% or lower, if you're Pete Buttigieg or Amy Klobuchar, that's a really tough poll to get any useful information from. So people reading way too much into those electability polls,

I think Sanders not only is electable just because he's not Donald Trump on the ballot, electable just because he's not Donald Trump on the ballot, but also because of where you're looking. Now, set aside the Castro bit. Trump won Florida last time. So Democrats don't necessarily need Florida. They'd like it. It would definitely help. They'd probably win if they won Florida. But Pennsylvania or Michigan and Wisconsin, there's, you know, that main district that stands on its own, the Nebraska district that stands on its own. There's some other toss-ups that you could grab. Sanders looks very competitive, I think, in the Midwest for his message. So to your point, I don't think Republicans should cheer Sanders winning

because he's the most beatable at all. That being said, I think Democrats should be a little wary that they're not seeing the sort of enthusiasm for Sanders that Barack Obama saw in 2008 by a long shot. That we know for certain. Well, and so can I can I tell you my theory of the case? And you tell me where I'm where you think I'm wrong. All of it. Oh, darn. I had such a well-formulated theory of the case, too.

So I think the 08 model for Sanders is just a pipe dream. I mean, I think the 08 model for most Democrats going forward, unless the country changes substantially, is a pipe dream. Here you had first African-American candidate, or first African-American nominee, set to become the first African-American president, a person of unusual political skill running against a party crippled by an unpopular war in one of the worst recessions in modern American history results in a big win that was very, very fleeting, by the way, as far as the House and Senate. So I don't think that if you're looking at 08, I think if the Democrats are pursuing 08, they've got unrealistic expectations. But I do think there's a theory of the case of Bernie that's very much like the theory of case for Trump in 2016, which is, I have a very fervent base of followers who would, you know, march up to the gates of hell for me.

would, you know, march up to the gates of hell for me. I have a very unpopular opposing nominee, and that even though my party is divided, the question to discontented people in the party is, what are you going to do? Vote for Trump is going to end the debate. And I think even going further, there is no such thing, there will not be a never-B never Bernie movement on the left. I just don't see a never Bernie. Even Jonathan Chait, who is writing, I mean, like Paul Revere calling out that the Redcoats are coming type columns in New York Magazine on a near daily basis, is going to support Bernie over staying home or Trump, of course. And so what you have is a dynamic where the Democrats are going to fall in line. They may not expand like they did in 08, but if their base is basically bigger than the Republican base, and the narrow, the margin that Trump had in these Midwest states

was very narrow, nobody in the Democratic Party is going to be taking for granted a single vote in any one of those states this time around. There's going to be enormous energy to mobilize and turn out votes. And there's a 75,000 vote margin that Trump has to worry about. And when you look at it like that, the idea that rather than an Obama 08 sweep the field, but a Trump 2016 run the table in four key states, it seems far more attainable. And I think that Republicans who think that that can't happen or is even unlikely to happen are way too optimistic about 2020. So tell me if I'm wrong. I think all of that is correct. There's one factor that I am just fascinated by, though. And we would be talking about a point or two at most, and it won't be called the never Bernie factor, but it will be equivalent, I think, to the never Trump vote, which probably was in a 5% or less zone there in 2016.

And it's the I hate Bernie's supporters. Oh, yes. Bernie's fine. But the online Bernie bros, as they're called, who attack people, dox people, have I think are actually turning off real voters. They wouldn't go vote for Trump, those voters, but they might stay home. Yes. And that the stay the stay home voters that voted for Obama in 12 and then did not vote for Hillary in 16. They didn't vote for Trump either. They just didn't vote for Hillary

unquestionably cost to the election in my mind. Could Bernie in his own way be creating this by by this army that actually it's a double edged sword. It's definitely what's getting him the nomination. It may cost him a couple points. Can he lose those points? I think that's up in the air. There were some reporters, Daily Beast reporter wrote last night about a paid Bernie staffer

who created a fake Twitter account, and I won't repeat the name of it, but was created to attack other candidates, Pete Buttigieg namely. And that reporter then online last night was reporting enormous levels of harassment. They'd gotten a cell phone number, you know, lots of negative things. Other reporters were saying that's happened to me as well when I write stories that might be seen as negative on Bernie. I don't think that that's going to help the Bernie campaign.

Yeah, you know, and I think you raise a good point about it being a small number of people. But if it was 75,000 vote margin that gave Trump the election, if it's 100,000 people in four states who are just like these people, and again, not Bernie, but these people around him are just awful. Yeah. That matters. And they scare me. Yeah. Yeah. Yeah.

Yeah. So I think it's time to move to Philadelphia, speaking of living in the Midwest a little. Yes, indeed. Yes, indeed. So I wrote today for my newsletter, which will be hitting members' inboxes only. So if you're not a member, you should think about becoming a member to get this premium content, Sarah. The Supreme Court has taken review in a really, really important religious liberty case. And it's really important based on the facts of the case,

and it's really important based on what the case could mean. And I'm going to explain the facts very quickly because they're reasonably simple. So you have Catholic Social Services in the city of Philadelphia, which does home studies and endorsements for foster parent families, people who want to take children out of group home situations or take children who've been removed from custody from their parent or guardian and placed in state custody. They want to become foster parents, and they have to be endorsed as part of a process by an agency to be foster parents. And so the Catholic Social Services follows Catholic teaching on marriage, and so it will not endorse a same-sex couple through its own process. Now, that does not mean that same-sex

couples cannot foster and adopt in Philadelphia. There are many institutions, there are multiple institutions that work with LGBT families. In fact, no LGBT couple has gone to Catholic Social Services and requested an endorsement in 100 years. They've been around for 100 years, and they've never had the situation arise. But Philadelphia officials read in the newspaper about CSS's policies and blocked any family that was endorsed from Catholic social services from the foster system. CSS sued with the Beckett Fund for Religious Liberty. I like to think of the Beckett Fund as the SEAL Team 6 of religious liberty, and no offense to my former colleagues at ADF who are the Delta Force, but there's just different branches of the same religious liberty

military. So the Beckett Fund, SEAL Team 6 swoops in, sues, lose, lose at the Third Circuit, and then file a cert petition in the Supreme Court. And the cert petition asks for a narrow win, and it asks for a broad win. And the narrow win is, we don't need to go into all the details of it, but it's resolving some really fine points of permutations of the law regarding Employment Division v. Smith, which had really lessened First Amendment protection. Well, and actually, I want to jump into Smith quite a bit in this conversation, because I think this does turn on Smith. So don't, keep going, but we're going to come back to the facts of Smith. Because in some ways, the facts of this case

aren't nearly as important as what the conversation is going to be around Smith. But that gets me to Smith itself, because one part of the questions presented is whether the court needs to re-evaluate Smith. In other words, does it need to either reverse or seriously modify Employment Division v. Smith, which is the infamous, speaking as a religious liberty attorney for many years, the infamous decision of the Supreme Court to change the test, the constitutional test that applied to free exercise claims from one in which once there was a substantial burden on a religious belief that the government could only overcome it by, justify their policy by proving that they had a compelling state interest and that was being enacted through the least

restrictive means, to if the state had a general law of neutral applicability. In other words, it wasn't targeted at religion. It was just a general law of neutral applicability. In other words, it wasn't targeted at religion. It was just a general law that religious liberty claims challenging that would fail. Yeah. So in Smith, I think the facts are interesting because facts do sometimes dictate the outcome of these cases. And so you have a state employee who fails a drug test. He's Native American, and he failed the drug test because he admitted to ingesting peyote as part of a religious service. When he was fired, he then applied for unemployment and was denied unemployment, basically for being fired for cause, and sued. And the court held that the state requiring people to pass a drug test applied to everyone.

The fact that the reason that you failed the drug test was because of a religious belief doesn't matter because the drug test rule applied to everyone. And I think that it is relevant that this wasn't, I don't know, taking wine with communion, something that a lot of us are familiar with. It's peyote as part of a Native American religious ritual that very, very few people are familiar with or would interact with someone who has those religious beliefs. And from that point forward, the court has had to carve out any number of fine points of detail and exceptions and well, okay, buts to Smith. And so that's why many people think that Smith is right for just getting, like throwing the baby out with the

Smith bathtub and starting over basically on free exercise claims. And what tepid, dirty bathwater that Smith bathwater is. I don't know that I agree with that, but I do agree that this is the case that will decide it. Well, and so backing up, I have long argued that the Smith decision is the result of the drug war distortion in constitutional jurisprudence. That time and time again— It's decided in the 80s. I mean, this is—it's exactly right. Yeah, so there's another famous First Amendment case called Morse v. Frederick, where a kid class dismisses for the kids to watch an Olympic torch to pass by outside their school, and a kid holds up a sign off school

property that says, bong hits for Jesus. You know I love this case. This is like my favorite. Bong hits for Jesus is the best. It's the greatest case, and it's just a joke. I mean, it's nobody... Nobody even knows what it means. You know, Chaz Michael Michaels from Blades of Glory. Nobody knows what it means. It's provocative. It Michael Michaels from Blades of Glory. Nobody knows what it means. It's provocative. It gets the people going. Well, it got the people going all right. So he was punished.

He filed suit saying this is free speech. And even though it was non-disruptive, it was not obscene, and it was not on school property, not school sponsored, which would ordinarily mean victory, he loses. Why does he lose? Because he's talking about drugs. And I think that with the Employment Division v. Smith case, and Beckett very cleverly in its cert petition, very cleverly does this, in the Smith case, it would have come out differently if this was not about a hallucinogenic drug. I firmly believe that. And Beckett sort of asks, and so surely, in addition, when you were ruling for Smith,

you didn't mean that the Catholic Church can no longer participate in foster parenting, in the foster parenting process. Like, are you kidding me? And so they're sort of raising this kind of, are you kidding me, attack on Smith and asking for its substantial modification. And I think that the court may well be receptive to it. Well, this has been set up. So in Obergefell and in Masterpiece Cake, the court hinted that they knew these cases were coming. Roberts at one point says this will raise issues down the line, including, I believe he actually said, foster care cases where the agency refuses to adopt to, I think. He was talking about adoption, to adopt to same-sex couples. So they've known this has been coming for years. And Kennedy, in the Obergefell decision,

basically says, and surely this should not mean that we become intolerant of opposing points of view. And he sort of issues this kind of Rodney King-esque, can't we all just get along plea in Obergefell. And the answer to that was, no, we cannot, can't we all just get along plea in Obergefell? And the answer to that was, no, we cannot, in fact, all just get along, which is why we have these cases bombarding up to the Supreme Court. So, okay. The Third Circuit opinion is unanimous. It is two democratically, two Clinton appointees, and I believe the other one was a Reagan appointee even like they're two senior judges, but it's unanimous. And it is, I don't think a frivolous opinion in any way. I think it is pretty well argued. The fact that the court took cert on the case means that you at least have four votes to change

it. Do you have that fifth vote and will it be narrowly decided or will Smith and the baby get thrown out? Those are the questions on the table, I think, for us today. So I think, you know, you're going to have a question, I think. If Roberts can cobble together a 7-2 like Masterpiece Cake Shop on a very narrow grounds, I think he'll cobble. He would try for that. That's just my totally take that for what it's worth, which is exactly nothing. But in Masterpiece, you had pretty clear evidence of discriminatory intent or hostility towards religion may just be a better way of phrasing it. Tons of on the record statements of various people in the government mocking this person's religion, saying they don't believe that it's his religion, et cetera. What's interesting about this is that while the petition tries to make some of those arguments, I think they do it somewhat halfheartedly in part because they don't want it to be decided on those grounds.

Because it would be the narrowest grounds by far. But also, there's just no question there is not the same hostility to religion. You don't have the same blatant on the record insults that you had at Masterpiece Cake Shop. Right, and I think at points they stretch a little too far and actually undermine the argument. I think they probably should have just said, this is not like Masterpiece. This is not based on hostility to religion. There's a part where someone from the city office says, I wish you would follow the teachings of Pope Francis more closely and reconsider your position on this as they're

trying to come to some agreement. And it's meant to be an olive branch. I think that for me left kind of a bad taste in my mouth. I think they should have abandoned that argument because I think, frankly, their whole case would be stronger to say, look, Masterpiece could get decided on these very narrow grounds because that was in the record. That's not what's in the record here. We think that the free exercise claim in and Smith is going to be real going forward or not is almost inevitable here. Because of the, I don't see, I'm like you. I think if Roberts could cobble together a 7-2, he would. I don't see how he gets there on this one. So you're going to end up 5-4 on this one in all likelihood, in my view. And so if you're

going to end up 5-4, I think that the way you end up 5-4 is you're going to have some clarity on Smith. And why this? So let me, can I read this one section of the Third Circuit opinion that I think is interesting and gets to some of this? CSS, by the way, is the name of the Catholic fostering agency. So when I say CSS, I'm referring to is the name of the Catholic fostering agency. So when I say CSS, I'm referring to our friends at the Catholic Church. CSS's theme devolves to this, colon, the city is targeting CSS because it discriminates against same-sex couples. CSS is discriminating against same-sex couples because of its religious beliefs.

Therefore, the city is targeting because of its religious beliefs. Therefore, the city is targeting CSS for its religious beliefs. But this syllogism is as flawed as it is dangerous. It runs directly counter to the premise of Smith that while religious belief is always protected, religiously motivated conduct enjoys no special protections or exemptions from general neutrally applied legal requirements. I think that is simply true. And so I think either the Supreme Court has to reject all of that and say our bad. Or they have to kind of agree with the Third Circuit here, because I do think it's the case. Well, let me get your

reaction. Well, I would say this, and some of my friends at the Religious Liberty Bar are about to scream that cry out in anguish, because I think that's a fair assessment. I think there are creative ways in which you can say under the current doctrine, like Smith has modified, you can get from A to B. Yes. And we did talk, there are all these exceptions to Smith that have been out there about, you know, sure, it's neutrally, you know, applicable on its face, but it's just not. And there are exceptions and there are some exceptions here. I don't find them again. So if I was representing Cherenelle Fulton, I would be saying, here's why I'm going to win anyway, Sarah.

But I'm not representing Cherenelle Fulton. So here's why I'm going to win anyway, Sarah. But I'm not representing Chernell Fulton, so here's what I'm going to say. I'm going to say that this is exactly, in many ways, what Smith means. You're going to pass a law. It is not going to be specifically targeted in any faith, although it will burden some faiths. And under the old law, if your faith was burdened, once you showed that your faith practice was burdened, there was a burden shifting that would go back to the government to provide an affirmative reason, a compelling governmental interest advanced by least restrictive means that would allow you to continue the practice. Smith did away with that. It created the standard of the neutral law of general applicability.

There isn't an argument that's so far been recognized, completely recognized as viable, that non-discrimination laws are targeted at specific religious beliefs. I think that's a tough, tough, tough, tough argument to make. And that therefore, it's a neutral law, it's a generally applicable case over under existing precedent. And I think that that's, so that's what the Supreme Court is going to have to reckon with. And here's why, just in our general lives, this matters a lot. So the religious liberty culture war is really fueled not by the claims of business people to be able to discriminate in normal business practices. Cases like Masterpiece Cake Shop, which Jack Phillips was not making a claim that he should be exempt from non-discrimination law. He was just saying that in a very narrow circumstance, his right of free expression trumps it.

Very narrow circumstance, his right of free expression trumps it. Very narrow circumstance. Well, and let me give one other thing on Masterpiece, which distinguishes it from here, I think. In Masterpiece, they said he had to make cakes that were pro-gay marriage, but other cake shop owners did not have to make cakes that were anti-gay marriage. Exactly. That clearly undermined the neutrally applicable law standard. And it was right there on its face. And Jack Phillips never made the argument that he should have the constitutional ability to not serve gay customers.

In fact, he served gay customers all the time. This is Newman v. Peaky Park, where a racist owner of a restaurant tried in 1968 to argue that he had a religious liberty interest to exempt himself from non-discrimination law. And the Supreme Court just like laughed at that, just like laughed at it. So what's not at stake generally in our religious liberty culture war is do businesses have an ability to exclude a class of persons from the premises? That's settled, no. What's also not at stake is, does the government have an ability to affirmatively come into the operations of the church and to govern the church? And that has been answered. No. 9-0. Hosanna Tabor versus

Evangelical Lutheran Free School. 9-0. Ruth Bader Ginsburg says, thumbs down to that. 9-0. Ruth Bader Ginsburg says, thumbs down to that. Here's where things get dicey. What about in those areas like education, health care, and social services, where the church has operated traditionally for millennia, and the government is taking an increasingly powerful role in those sectors? So I can't operate a church or run an adoption agency or have trouble getting accreditation or even funding my school absent some government program or benefit. So where the state and the church become entangled, often against the church's will, honestly, but they become entangled and where does religious liberty begin and end there There. And that's where

everything is coming to a head. And this case will, I hope, draw a new line that is saying to religious institutions who are operating in these areas where religion has always operated, and say you do not have to abandon the fundamental tenets of your faith to continue to operate in these areas that you've operated in for millennia. Like, that's what I, and I think that the founders would look at that and say, yeah, yeah. I mean, this is not what, this is, the free exercise clause combined with the establishment clause were not designed to allow for a sort of a state crowd out of the church in core church functions. And that's where I'm hoping this ends up. And I began my newsletter with a phrase that I hate, but has some truth to it. And that is, liberty finds no refuge in a jurisprudence of doubt.

Those were the opening words of Planned Parenthood v. Casey, which I think were misapplied to the abortion context. But there's a kernel of truth there, that when you don't know what the law is, when the law is up for grabs, when there's an enormous amount of uncertainty, the culture war kind of turns into the Battle of Verdun. And hopefully this can begin to provide some clarity and line drawing to where we know where we are when the church and the state interact in those areas where the state is increasingly important and the church is always operated. Does that make sense? It does make sense. Let me push back, though, a little, which is Smith has provided a lot of stability, and the exceptions have always made a lot of sense.

So, for instance, one large exception was the sacrificing of animals that, you know, the state, quote unquote, passes a law saying you can't kill animals for the purpose of sacrificing them ritualistically but we are exempting eating the animals uh you know care for the animal and end of life you know all of these exemptions where it was clearly targeted at this um at santeria the if you're a sublime fan you know the song um uh okay good that was too narrowly tailored it was clearly meant to get at a specific religious practice then you have cases like the um the beards the beard cases where police officers have to be clean shaven unless it's for health reasons. But a Sunni Muslim is not a health reason. He wants to have a beard because it's his religious belief. And they said, no, sorry. The health reason is sort of to all of our rules. I mean, if you have some health reason, you need a beard, but like that we've never really used it.

And they said, no, because look like that it's not a real rule anyway to to your point it's not about drugs um and you have a beard so i'm sure you feel like beards are pretty reasonable uh and so and then masterpiece where the law was neutrally applicable like it is here but it was very clear that they had built out exceptions again for people who made anti-gay cakes where they said that was offensive therefore deciding which beliefs were offensive and which religious beliefs were acceptable and just generally the hostility to religion i don't think it creates a lot of uncertainty to live in a world where Smith has these exceptions. They're applied faithfully.

And yes, there's going to be some that fall in this very narrow in-between space. Well, OK. But here we are. So here's my issue with this, with that. Because essentially what happened is as soon as Smith was decided, all the people like me out there in the world who were litigating these issues said, you know what? We can get around Smith. We can get around Smith. And here's how we get around Smith. Instead of raising a free exercise claim, we're going to raise a free speech claim.

And so the vast majority of religious free exercise also fits within the free speech clause. So if you're preaching, if you're proselytizing, and some of the garments that you wear, you know, even a beard is a form of expression, a yarmulke. Yep. So I just go, okay, free speech. And this was actually controversial back in the 1990s as people began to pioneer. And association, by the way. Speech and association. So people, then it became a little bit controversial because people said, well, wait, we want to defend the free exercise clause. We don't want the free exercise clause to be a dead letter in favor of free speech and free

association. But we charged ahead anyway because we were representing not just a cause but also a client. And if we want to win. And so you created this really, I mean, it really is pretty remarkable. Over about a 15-year span, we basically gutted Smith by converting 90% of all free exercise claims into free speech claims. But what that ended up doing was creating a real weird distortion in the law where you're engaging in religious free exercise, and some forms of religious free exercise have all of this protection, and other forms of religious free exercise don't have much at all. And really... And it's how you end up with Trinity Lutheran, a case about, you know, grant funding, these case about contracting, about business services. You're

right. Like we're basically redoing the 90s, but with the free exercise. Right, exactly. And so, you know, the end... But note, Smith didn't fall during the 90s. I mean, so you do this end around, around the whole thing, and then you're resulting in this really weird situation where if the Catholic Social Services could find a way to make a free speech claim out of their foster parenting program, they win. But it's a real stretch.

It's a real stretch. It's not going to be a free speech case. It's going to be a free exercise case. And the free exercise clause was gutted, but it wasn't really because 90% of it was converted to free speech. And there was also, I would argue, a pretty high degree of stability in free exercise jurisprudence prior to Smith. degree of stability in free exercise jurisprudence prior to Smith. And in fact, what Scalia, sadly, wanted to do was he didn't like that stability. He didn't like where it was. And I think to a large degree, you know, he wanted the flexibility. It would be really hard to make a compelling governmental interest least restrictive means argument about peyote. I mean, I guess you could get there, but not super easy under traditional doctrine, which had placed a premium on sort of, you know, people had made

challenge, religious liberty challenges like social security. And you could make an argument that, look, this system of social security depends on universal participation. There's that compelling governmental interest. And, you know, you could make arguments where all of these little specific pinprick carve-outs were deeply problematic to a compelling governmental interest. But with POTI, I mean, the guy was going to win under the old standard. I mean, I just think he was going to win under that old standard. So I think what has happened is we created a drug war distortion in religious liberty law that'd be unrecognizable to the founders. And it's got to be fixed. It's got to be fixed. And one of the benefits of fixing it

will be that we'll be able to turn down the temperature a little bit on a really supercharged part of the culture war, which is this fear of millions and millions and millions of religious Americans that they're coming for our schools, they're coming for our adoption agencies, they're coming for our hospitals. They don't want us to exist as equal citizens in this country. They don't want us to exist as equal citizens in this country. And I mean, you can say that. I don't think it'll turn down the culture wars one degree. I think that once that's I think it's a one way ratchet on culture war.

But let me give you my narrow outcome in this case. My not overturning. I want to hear that. That's good. my not overturning. I want to hear that. That's good. Which is that the referral exception. That because there are, I think that was what it was at 30 or 40. There's, you know, several dozen current foster agencies that each have specialties or often have specialties. And they each refer to one another, sometimes for language reasons, immigration status, location, you know, hey, there's this other foster agency that's much closer to your home.

You don't need to commute all the way out here. And that the NCSS has committed to, as I understand from their brief, that if a couple came in that they could not endorse, they would refer them to someone who would. And therefore, the gap between what the city is requiring of them, you don't need to overturn Smith for. You can simply say that the Third Circuit incorrectly applied the exceptions to Smith or create, this is sort of a new exception to Smith,

because they have committed to serving married couples, same-sex married couples, their service to them will be to refer them to another agency that will then endorse them. Right. And, you know, even in my newsletter, I say, because what we're talking about here is not just outcomes, it's tests. So what is the test? And what kind, you know, what is the test that should apply to cases like this? And look, I think that if you have a compelling governmental interest standard with least restrictive means and you have 30 or 40 agencies, I think it's very easy for a Catholic social services to say there is no compelling governmental interest in shutting down one of these entities when we have 29 others that will serve and we're referring anyway? Like that starts to look more punitive than, that starts to look really punitive. But it's a different situation, perhaps. Well, it's certainly a different situation when you're

talking about governmental interest if there's only one adoption agency or foster service. one adoption agency or foster service. And so it's either access or no access. And that's where tests tend to return to different outcomes. And which is why I always get upset that, well, not upset, but chagrined, chagrined when people say, well, if we return to this particular test, that just means religious people win all the time. That's not the record, turn to this particular test, that just means religious people win all the time. That's not the record, priest Smith. That's not the record, priest Smith. I think this is a great bit to end on because talking about what happens when there's only one service provider left, things like that, is really what we're going to be discussing on Thursday. Yes. Yes, it is. And we will have the Solicitor General for the state of Louisiana in to talk about the Louisiana abortion case, which is being argued next week.

So that will be exciting. Let's talk about the e-book. Oh, Sarah, this is my favorite thing. Okay, are you a hockey fan? I'm not, which is terrible because I like hockey, but I don't follow it like I follow the NBA or college football or the NFL. I love hockey culture. I just don't love watching hockey, which is terrible because the Nashville Predators are virtually the second religion behind Christianity in Nashville. Everybody loves the Preds. But I don't follow hockey closely, but you didn't have

to follow hockey closely to know about this story of Dave Ayers. Okay, but explain the weird rule in hockey that does not exist in any sport about why an e-bug exists in the first place. Well, this is so great, and it's one of the reasons why you just kind of love the different subcultures, the different sports. So they have this position called emergency backup goalie. And it's a guy who literally sits on call in case the two hockey teams typically carry two goalies, in case the starter and the backup are both hurt or injured or disqualified. You bring up the emergency backup goalie who is provided by the home team, who sort of sits down in the basement waiting for the emergency call to come into play. And it never happens. It never happens until it happened.

And it happened, was it Saturday, Sunday? Sunday. Three days ago. Three days ago, yeah. Toronto Maple Leafs and the Avalanche are playing. And the Avalanche at the Maple Leafs, so this is the Toronto is providing the goalie, the Avalanche lose their primary goalie, and in a really kind of a scary collision, their backup goalie. And the text message goes off, and up from the bowels of the

stadium comes the guy who runs the Zamboni, not for the Maple Leafs, but for one of the minor league affiliates of the Maple Leafs, a former minor league goalie who had a kidney transplant in the past and is four years ago and is 42 years old. So a 42-year-old kidney transplant survivor, Zamboni Driver, becomes the goalie for the Colorado Avalanche and wins, gets the win in the game. He gives up two quick goals, but shuts down the Maple Leafs for the entire third period. Gets the win. Greatest story. This makes Rudy look like crap. But wait, the best part is it happens on the 40th anniversary of the miracle on ice.

It seemed destined. It was like meant to happen. And his press conference or interview afterwards was every bit as charming as you could imagine with his canadian accent um playing for you know not his team that he roots for and um how how gracious the teammates were they were basically like you know as far as they thought they're like we're gonna lose this game so just go have fun. We don't care how many goals you give up. And he was like, then I just relaxed and I had a great time. His wife, by the way, and you know me, like I'm always, I'm always into the feminist aspect of this. His wife is like sitting at home on Twitter and watching this, you know,

unfold in real time. And her tweets are the most, I don't know, just wonderfully authentic, loving wife tweets of all time. I can't repeat some of them, but they're exactly what I would have said. And anyway, one of them, though, I can repeat, which is just, that's my baby, with a bunch of exclamation points. And a lot of people on Twitter

really enjoyed her feed during this as well and her surprise and her delight as her husband gets to fulfill his lifelong dream and that's a wonderful thing for a spouse to get it is and you know I if you haven't seen it there is the video of him coming into the avalanche locker room after the win, and the guys just like dogpiling him, yelling and screaming for him. And when I saw it, it had like six million views, probably more to go. And I mean, honestly, this is my favorite story. You know, I remember tearing up during Rudy when like this kid who was like at the end of the bench of Notre Dame football gets in in his last game and gets a sack on the quarterback. What this guy accomplished is so much greater than one stinking sack on the quarterback.

I mean, holding down a defense against a professional hockey team at the apex of hockey talent in the world for a full period. Now, I know he had teammates who locked it down and he gave all the credit to them. I mean, he came in and he actually delivered. It wasn't just like, oh, how sweet he got that moment. It was like, how sweet he got that moment. And holy smokes, after he gave up those two quick goals, he settled down and did the freaking job. That's, if Hollywood isn't on this already, like, America will never be great again. But if Hollywood isn't on this already, like, America will never be great again. Okay, but here's my question, and maybe a listener can answer this because I'm not sure that you would know.

How did they have a jersey for him? Like, the jersey had his name on it. Oh, it had his name on it. Yeah. I mean, I guess some people take this e-bug thing pretty seriously. I mean, this isn't like we didn't land on the moon type conspiracy stuff, but I'm sure there's an answer. Emergency backup goalies have jerseys for every team. That seems somewhat unlikely given the fact that it never happens, but maybe that's the case.

So, dear listeners, please let us know. they, someone will know this, how they had a jersey for heirs ready to go. That is a great question to end on. That's fantastic. Yeah, so if you take nothing from this podcast, you have despised every element of this content so far, you will, if you just Google the e-bug, you will end on a moment of pure joy. And as you end on a moment of pure joy, don't forget to rate us, as I said at the beginning. And please, we're building this really incredible community at The Dispatch. And if you go to

thedispatch.com and you look at the content that's free. For a long time now, only the commenter, only the members have been allowed to comment. And if you read the comment section, it's actually really a tremendous discourse, sometimes touching. It's quite a community that is being built there. So please join us at thedispatch.com. I really enjoy it. I often dive into the comments on my standalone pieces, or if I just see some interesting comment, people raise interesting points. We go back and forth in a like totally normal, how you have conversations with humans in real life way and

not like Twitter. Um, so I've really enjoyed it. I do, I do the same thing. I haven't dipped into a comment section in years. Uh, no, you? But now I do it and it's a delight. And so, and by the way, that's that I just disclosed that how you control me and I'll read it as I'll read our comments. But please join us at thedispatch.com and subscribe to this podcast, Advisory Opinions, on Apple Podcasts. Until Thursday when we talk to the Louisiana Solicitor General, that's when we'll see you again. Bye.