Advisory Opinions - Play in the Joints

Episode Date: January 22, 2020

David and Sarah discuss the administration's moves to protect prayer in public schools with Jennie Bradley Lichter, the deputy director of the White House Domestic Policy Council, Little Sisters return to the Supreme Court, and justices will hear the faithless electors case. Learn more about your ad choices. Visit megaphone.fm/adchoices

This episode is brought to you by RBC Student Banking. Students, get $100 when you open an RBC Advantage banking account, which includes no monthly fee, unlimited debit transactions in Canada, Avion points on debit purchases, and so, so much more. Unlock more perks for less with RBC Vantage. Conditions apply.

Offer ends June 30th, 2024. New eligible clients only. Complete criteria by August 30th, 2024. New eligible clients only. Complete criteria by August 30th, 2024. Visit rbc.com slash student 100. UV rays don't skip a day. Neither should your SPF. Introducing Daily UV Moisturizer from Umbrelle. Broad-spectrum protection and all-day hydration in one lightweight formula from the number one recommended brand by pharmacists and physicians. It's the unskippable SPF for your unstoppable day. New Umbrella Daily UV

Moisturizer, now available online or at your local retailer. Welcome to Advisory Opinions. This is David French with Sarah Isger. to Advisory Opinions. This is David French with Sarah Isger. And if you are a lawyer, an aspiring lawyer interested in particular in particular in religious liberty, this is the podcast for you. And it is also a special treat because we have someone here from the White House in our dispatch studios in Washington, D.C., our opulent dispatch studios in Washington, D.C. And Sarah, why don't you introduce our special guest? Oh, yes.

And the chandelier is just getting in the way, the crystal candelabras. Just kidding. So very excited today to introduce Jenny Bradley Lichter. I have known Jenny since our law school days in cold, cold Cambridge, because as you all know, we only know people who went to Harvard Law School here, unfortunately. Just kidding. We do know some other people. Jenny and I bonded over so many things in Cambridge, but things that are relevant today are that Jenny makes the best cookies. She has great clothes for me to borrow. We're very similar sizes, which is always important,

as you know, when making female friends. And she is brilliantly smart and talented and dedicated and gave me a copy of Letters to a Young Catholic, which I treasure as a non-Catholic, to explain some of Jenny's world. And it was a great little cultural exchange that we had in Cambridge. Jenny is now, well, now she's Jenny Bradley Lichter, as I said, so that's a whole change for me. She's been married for seven and a half years, has two kids. Let's not pretend like this is recent, but, you know, adjusting to your friend's new married names is always hard. She is a deputy assistant to the president. She is the deputy director of the domestic policy council. Before that,

she was working at the department of justice in the office of legal policy. And Jenny, I have something that you probably don't know, which is I wrote my law school note on these issues. I did not know that. Welcome to the pod. Great. Can't wait to hear about it. Well, let's dive into it. And I said, you know, if you're a lawyer, if you're a law student, and we actually have a lot of law student listeners, so glad to have that. And also, if you're really focused and interested in religious liberty and what the Trump administration is doing to protect religious liberty, this is your podcast. And so I want to set the stage legally. We've been, you

know, this is a new podcast and we've been getting some really good feedback from people. And some of the non-lawyers in the audience has said, you know, love listening to you guys, but you and Sarah dive into the legal weeds really fast. And so maybe setting things up could be helpful. So let me just basically set this up. What we're going to be talking about are regulatory changes that the Trump administration is proposing. And before your eyes glaze over at the very word regulatory, this stuff is important. And here's why. What gets all of the attention in the battle over religious liberty are court decisions and statutes, acts passed by Congress. But court decisions, they certainly decide the issues in front of the court regarding the litigants themselves, and statutes certainly

establish legal rules and principles, but the way in which the federal government operates through its executive agencies often, almost always, requires regulatory guidance, very specific instructions that enact and execute the principles articulated in court decisions and statutes. And so that's what we're talking about. And Jenny, if you could just sort of walk us through what are some of these regulatory changes? They were announced late last week. They're getting kind of lost in the news cycle, but I think they're really

important. And it would be wonderful if you could kind of walk us through what is the Trump administration doing? Why is it doing it? And then we'll just kind of pepper you with questions if that's okay. Sure, that sounds great. Thank you. So I'll take a step back and set the stage a little bit. Thursday was National Religious Freedom Day, which many folks may not have heard of, but it is celebrated every year and it commemorates the Virginia General Assembly's adoption of Thomas Jefferson's religious freedom statute, basically, in 1786. That statute was one of the templates for the First Amendment, and that's why we celebrate this day. So we decided this year in the White House and across the administration to really lean into Religious Freedom Day and put a bunch of activity,

both activity with the president at the White House and some folks in the Oval Office, and then some regulatory changes, as you mentioned, and other sorts of changes all on that day. So I'll briefly walk through the three different things that we announced on Thursday. And then you all, as you said, feel free to pepper me with questions about any or all. Going from, I think, maybe the least interesting to the most interesting. In the morning, nine agencies released simultaneous proposed rules that would make a small, a discrete but important change to the rules that govern faith-based organizations that get government funding. So there's a bunch of federal government regulations surrounding the activities and

requirements for grantees. Again, these are folks that get funding from federal agencies. And the Obama administration had put in place a new requirement that bound only faith-based grantees, not secular grantees. That requirement was that any faith-based grantees not secular grantees that requirement was that any faith-based grantee has to tell every beneficiary that walks in their door hey if our religious character makes you uncomfortable for any reason let us know and we would happily find you an alternative secular provider where you will be more comfortable this is not to be perfectly frank it's not a huge administrative burden right it's not extremely costly to do this no one

was going to have to close their doors to fulfill this requirement but a couple of years ago year and a half or so ago when the president's team was preparing an executive order on religious freedom one of the questions that we all talked about was should we take this requirement down? And we felt like the answer was clearly yes for a couple reasons. One, it is burdensome. It's not hugely burdensome, but it is burdensome.

Two, it's certainly in tension with maybe violates religious liberty law by burdening religious entities and not similarly situated secular entities. And three, it really just casts a veil of suspicion, so to speak, over religious entities. I think that it sort of frames religious entities as rights violators in waiting, right? It suggests to everyone who walks in the door that maybe you should be offended or stop and think for a minute if you're comfortable. And then again, puts the burden on the religious provider to find an alternative if the person decides they're not comfortable. So that requirement was taken out of an executive order last year.

But in order to implement that change, it had to go into these regs. The Obama team had put this in place in the regs of nine agencies. And so we had to go back into those nine regulations and take that requirement out. So that was number one. Not a super sexy change, but, again, we think it's a meaningful change for religious providers and that we had to do it just, again, to level the playing field. So number one. Well, can I interrupt you for one second?

I think one thing that I always thought was weird about that is exactly what you said. And it's almost like a – it was almost as if the Obama administration was telling a ministry or a religious relief agency to say, warning, Christians here, or warning, Jews here. It was very strange, and it almost, as you said, cast this notion that a person should by default be wary of a religious charity, for example. And I always thought that was a little strange. But anyway, that's just an editorial aside. Please continue.

That's exactly right. That's exactly right. Yeah. So this, just for the sake of your listeners, these are proposed rules. So these changes are not immediately – they're not taking effect immediately. They will have to be – there's a comment period that's open right now, and then there will be another round of final rules that will be promulgated, hopefully, just later in the spring.

And then that change will become active. So again, just a little note about the way the regs process works. So that was thing number one. Thing number two was a memorandum from the acting OMB director that's taking on the question posed by Trinity Lutheran, which is a Supreme Court case decided in 2017 that involved a preschool, it was a daycare or preschool affiliated with a Lutheran church in Missouri that had applied to the state for a playground resurfacing grant. And it was ranked number, I think it was number five or number

seven or something out of all applicants. So very highly ranked application. The state said, we're actually just going to disqualify you because you're affiliated with a church. So even though the grant was not for something religion related, again, it was playground resurfacing so that the kids there would have a safer space to play. The state disqualified it. And the state said, well, that's because we have this, we have like a Parks and Rec Department regulation that's based on this provision in the Missouri Constitution that says religious entities can't get funds, basically. The Supreme Court did not go as far as ruling on the Missouri constitutional provision,

what's called a Blaine Amendment. But it did say, no, you definitely can't just flat out eliminate a religious entity from funding when they're competing for a grant that has a secular purpose and they otherwise are eligible for the grant. Cannot do that. So that's the backdrop against which we should think about this OMB memo. What this memo says to federal agencies, right, who are the folks sort of within OMB's purview is hey federal agencies remember that you have non-discrimination obligations you are required when you are distributing federal funds to follow the law yourself all non-discrimination laws and to make

sure that your grantees are also following relevant laws when they distribute federal funds so then the memo gets more specific and says this means federal agencies that even if you don't see any federal law or regulation that arguably violates Trinity Lutheran you need to be thinking about your the laws that bind your state grantees at the state level please be aware that many states have laws in place including some state constitutional provisions and here we're thinking of Blaine amendments although we don't use that term in the memo but keep those laws in mind and and keep in mind that by attempting to comply with those state laws some of these state

grantees might be discriminating against applicants in violation of the free exercise clause as interpreted by the Supreme Court in Trinity Lutheran then goes on to say agencies if you see this happening, please remember that you have enforcement mechanisms. For example, you might consider withholding funds from a public grantee that you believe is distributing federal money in a way that violates the Constitution. And this sounds super wonky, but what we're trying to do here is find a creative way to hopefully impact state behavior.

Right. Blame amendments are really widespread. They're problematic. I think they're clearly unconstitutional. The Supreme Court hasn't said that yet. And we don't make that assertion in this memo. But there's a good argument that they're unconstitutional. And until the Supreme Court decides that, how can the federal government help move in that direction? Well, we can't reach out and take state constitutional provisions off the books. But what we can do is use our power of the purse, so to speak, right? We can sort of follow the money and we can say, well, these federal agencies do have legal requirements to make sure that their funds are being used in a way that complies with the law. And if that's not happening, well, then, you know, maybe the recipient who's violating the law is going to have to face some consequences.

So, you know, we'll see if a bold agency decides to really take this to heart and follow this money and suggest to a state recipient somewhere, like, we're watching you. We're aware of your Blaine Amendment. We see how you're spending our money, and we don't want to see it violate Trinity Lutheran. But that's certainly our hope. And on this one, I will say it got a little bit lost in the shuffle because the biggest, the highest profile thing we did on Thursday is what I'll talk about next. But a couple of folks in the religious liberty advocacy community reached out to me and said, you know, I actually think this is the most important thing probably that happened on Thursday long term. Well, and I think, you know, one thing,

a lot of people, we all know exactly what a Blaine Amendment is because it's sort of been something that a lot of us have had our sights on for years in litigation. But a Blaine Amendment is a shorthand reference to a, it actually was born in a James Blaine, a senator from Maine who proposed a constitutional amendment that was specifically anti-Catholic in intent. So this is sort of post-Civil War America as you begin to have a big influx of Catholic immigrants into a largely Protestant country. The Protestant establishment of the U.S. kind of rebelled against that. And Blaine proposed this amendment that would have prohibited, and this is something to modern ears, doesn't sound particularly odious, but in the context, he proposed an amendment that would have banned public-

An amendment to the U.S. Constitution. To the U.S. Constitution, right. that would have banned provision of public funds for sectarian purposes. And by sectarian, he meant Catholic. Because if, you know, you lived in the United States in the late 19th century and moving into the early 20th century, your public schools were basically kind of Protestant schools. I mean, you had school prayer, you had Bible readings from King James Bible, you had Bible lessons. And so they- Yeah, and to be clear, this is after 38 states pass a state version of the federal Blaine Amendment that did not obviously become part of the U.S. Constitution. So 38 states have this that says you can't do this. And if you're wondering how we know that it was for the purpose of being anti-Catholic, because they kept having Protestant prayers in school,

not Catholic ones. Exactly. And so, yeah, so the federal amendment failed, but it was wildly successful at the state level, sadly. And this vestige of this amendment has hung around in these state constitutions. And so what it has done is it put religious entities as a second class status under state law in state after state after state. And so as Jenny is describing, what the federal government is doing here is saying, no, as far as the power of the purse is concerned, we're going to put religious and secular entities on the same playing field. And as you keep going, and I'm sorry for continuing to interrupt these editorial asides, but as you keep going, I think you're going to find that

this is a theme throughout these proposed changes, is legal equality, is that a faith-based institution and a secular institution should be treated the same way. And I think this is the power of the purse trying to do that here. So sorry for that again, Jenny. And this is presumably a lot of money on the table. I don't know if you have stats on how much, you know, an individual institution obviously would stand to lose, but the Department of Education gives enormous grants to a lot of places. And of course, then you have the Department of Justice sitting there with its large hammer. It's not so much a money issue then, but still. So the federal government, per usual, has enormous coercive powers. We complain about

those coercive powers sometimes. Here, religious liberty advocates are cheering the coercive powers, but make no mistake as to the coercive powers, but make no mistake as to the coercive powers of the federal government. Right. That's right. Money talks and states get an enormous amount of money from the federal government. So we hope that this is something they take seriously now that essentially, you know, the memo is not to them, but we hope that the memo puts them on notice that this particular type of funding behavior is is being watched carefully by the federal government by their funders basically thing number one thing number number one the thing that got that

they're the thing that got a presidential event in the Oval Office on Thursday and and sort of the most buzz if you will because it's the most accessible is an updated guidance on constitutional protections for prayer in public schools this uh the backdrop of this document is the elementary and secondary education act which requires guidance like this basically talking about protections for religious expression in schools requires it to be updated every two years that hasn't happened since 2003. So just at the the initial and most basic level. This was very long overdue and I and I think across the administration We just get a special pleasure out of getting around to doing things that other people haven't gotten around to

We try and make a business of doing that So the Department of Education to their credit noticed last year that this was way overdue for an update and they worked with the Office of legal counsel at the Justice Department, which they're required by the statute to do, to update this document. So what does it do? Again, it lays out in pretty accessible language the protections that are available that are guaranteed by the Constitution for students and teachers in the public school setting. And the sort of driving principle here is students do not shed their First Amendment rights when they walk in the door of their public school. That, one might think, should not need to be clarified because it is a pretty basic application

of what free exercise means. Oh, I don't know, Jenny. You didn't go to public school, did you? No, I didn't. No. Oh, no, no, no. Oh, okay. You were treated more or less like prisoners in public school. And the food's about the same. We'll get to my public school experience in Texas in a bit. But please continue on shedding rights. So, yes, it would be interesting to hear your perspective because I have never set foot in a public school in my life unless Harvard Law School counts, which I don't think it does. No, it does not. And by the way, Santa Fe School District versus Doe, which is sort of the preeminent school prayer case decided in 2000, Santa Fe does not refer to Santa Fe, New Mexico.

It refers to Santa Fe, Texas, which is quite close to where I went to high school. Oh, very interesting. So with that, please continue on thing one. Great. Okay. Can't wait for Sarah's story. So we'll, we'll get there quickly. Um, so this document lays out in some detail, are you allowed to pray with your friends over your lunch hour? Yes. Yes, you are. Um, you know, et cetera, et cetera, et cetera. So this, as you know, to go back to what David was mentioning at the, at the top, um, the, the backdrop here is a statute, but it's in the charge of the Department of Education to implement that statute. Here, these are not regulations.

They're called sub-regulatory guidance. But it has the force and effect of law. Guidance often doesn't. I should make that clear. But here, the statute gives authority to this guidance document as the sort of governing document about school prayer. about school prayer. In the event in the Oval, just to sort of tee up Sarah a little bit, several students told their stories to the president there about some of what you're describing. So there's a girl who said, well, I gathered a few classmates to pray in the cafeteria over lunchtime for, I think it was the brother of a classmate who had just been in an

accident, someone who had been badly hurt, and they wanted to pray together. Their principal told them, you're not allowed to do that here. The kids valiantly tried again the next day. And that day, strangely, I truly can't, I don't quite understand what the principal thought the governing law was here. But that day she told them, you can pray if you go and stand behind that curtain over there, or if you go outside and leave the building. I guess she thought like if no one could see them, then it was okay. They then, you know, I think kind of gave up and just went to the school district who then overturned what the principal was doing. But the point is students shouldn't have to fight and fight and fight and fight to be able to exercise their constitutional

rights. Another story is this one was in the news a bit last year. This kid from Utah, a Catholic kid who was one of the only or the only Catholic student in his public school, had ashes on his forehead on Ash Wednesday. His teacher told him that was inappropriate and that he had to clean his head. He, again, valiantly for someone who was eight or nine at the time, explained that he got his ashes from church. It wasn't dirt. It was a religious thing, and he'd really prefer not to have to clean them off.

He said, he told the president in the Oval, this happened four times, and the teacher finally just cleaned him. And he was very upset by this. He now, he actually was at the event in his Catholic school uniform. He now goes to Catholic school. But that sounds like it was pretty traumatic for him. Again, he's pretty little. And the teacher should not have been

telling him it was, quote, inappropriate to have sort of visible religious expression. So our hope here, some folks asked when this came out, well, what is this doing? The statute already exists that says that schools have to comply with First Amendment law. What's the point of the guidance? I think the point is, first of all, no one seems to know that this is the law, so we're reminding them. Number two, again, putting school districts on notice and state educational agencies on notice that there could be repercussions if they don't comply, that is, if they continue to violate students' religious liberty rights. But three, I hope that this document really empowers students and their families and teachers to know their rights and to exercise them with confidence. Right. So that if someone tries to stop them from praying, they can say and they can feel confident saying, no, I'm allowed to do this.

It's protected by the Constitution. And we're trying to think of creative ways. Right. How do we make sure that students know about this do we need a social media campaign because that's where kids these days get all their information you know we're gonna try videos there you got tick-tock but there you go we're trying to find sort of creative ways to get it in the hands of students so that they can look at this document which is short and pretty accessible like I said and just know oh this this this activity is protected and no one should push me around about it. David, do you want to talk about Santa Fe School District, the case that launches a thousand ships here?

No, you can. No. Go ahead, Sarah. So I graduate high school before this case is decided at the Supreme Court, but it is making its way through the courts while I am in high school, which is all highly relevant to my very strange high school experience. Were you aware of it in high school? Very much so, because this policy at Santa Fe was not unique in any way, shape, or form. And what was the policy? So the policy was, well, the initial policy at Santa Fe High School was there was prayer over the loudspeaker every morning. They changed that policy so that these students had to have a secret ballot to

vote. Shockingly, the students voted to have school prayer, and then they still had prayer over the loudspeaker at the football games. The Supreme Court holds that that is a violation of the establishment clause. This, however, to Jenny's point, is pretty specific. It is school-wide. It is an opt-out, not an opt-in. It is different than individual students choosing to pray in their lunch hour or in moments of quiet, in between classes, coming with ash on their heads.

I mean, we're far afield of Santa Fe when you start talking about that. And this is where, as everyone who listens to this podcast knows, the tension is between the establishment clause and the free exercise clause. So Santa Fe is a establishment case. But what you're talking about are free exercise issues and and how those two bump into each other. What at my high school, I obviously was not on the football team. I was president of the orchestra. So my high school, for instance, and this is, again, in the year and two before Santa Fe is finally decided at the Supreme Court.

We had prayer before orchestra concerts as well. And when I said something about how this was a violation of the Constitution, with all of my 15 and 16 years of life experience, I was very keen on Tinker, which was the case from the 60s about not shedding your rights at the schoolhouse door. They created an opt-out where I or other students could stand up and leave the orchestra room during the prayer if we wanted to. I informed them that I also felt like that was a violation of the Constitution. Mind you, the students at Santa Fe, it was a Mormon and a Catholic family who were bringing the lawsuit against the school.

Theirs was probably more effective than mine was. But in my orchestra, we did end up with an opt-in system where students who wanted to pray could choose to pray on their way into the orchestra room. Those of us who were already in the orchestra room could stay in our seats. I think that sounds like it matches with what your policy is. Yes, that's exactly right. I mean, the guidance acknowledges, right, the Establishment Clause exists and it imposes requirements. So the school cannot, as the school acting in place of the state, impose requirements for religious expression on anyone, right? But the

schools also certainly should not be preventing religious expression by individuals or groups of individuals in their own time. And to David's point earlier about how the regs and the OMB memo are about equality, ensuring equality essentially between secular and religious entities, here one of the guiding principles is to the extent that students are allowed to use non-instructional time for anything or school resources for anything, they really should also be allowed to use it for religious activity. That religious activity should be treated similarly as non-religious activity in terms of what students can do in non-instructional time. I was going to say, I think one of the key way of thinking through this is, is the prayer in question an official act? In other words, an act that the school as the school is advancing, endorsing, or is it an individual act, what the student as the student is doing?

So there's a big difference between saying the school is going to set aside one minute to start every school day for somebody to pray from the loudspeaker. That's a... Even a student. Even a student. Because that loudspeaker and those school announcements are clearly school sanctioned to anyone who is attending that school. Correct. So that's a different thing from saying that what the situation that Jenny talked about,

which is a group of students gathering together on their own in free time in the cafeteria to pray. And what ended up happening after a lot of these school prayer decisions that were beginning in a lot of these school establishment clause decisions in the schools that really go back to the 1960s is that an awful lot of administrators kind of got this idea because, you know, the number of constitutional scholars in the U.S. public school administrative system is vanishingly small. I was public school educated up through 12th grade, rarely heard any discussion of the Constitution. And so what ended up happening is a lot of people sort of took this notion from all

of these Supreme Court cases that said, not official acts of religion violate the Establishment Clause, but they kind of interpreted in this really simplistic way to say, religious acts in school violate the Establishment Clause regardless of their source. And then that's when you began to have, like back in the 1980s, when I was thinking about going to law school and then the early 90s, you had all these cases that would come up that were just like, to 2020 ears, they sound weird. Like, wait a minute, a bus driver told a kid that they couldn't bring their Bible on the school bus? A teacher tells a student they can't read their Bible at recess? What?

What are you talking about? But this was the kind of almost like a constitutional establishment clause panic that descended on these schools. And so there were laws passed. There was the Equal Access Act in the Reagan administration. There was guidance from the federal government since. And Jenny's right that essentially what happened after the early 2000s is everyone kind of dropped the ball and didn't fulfill statutory requirements. And now this, you know, the Trump administration is fulfilling a statutory requirement that hasn't been fulfilled for a long time. But this is where I think it's worth defending the school administrators is a strong term

for what I'm about to do. But there is a reason that any time someone said boo on the establishment clause, the school's folded and you have, you know, ashes being wiped off and Bibles being confiscated. It is not that every school administrator is hostile to religion. It is that under 1983, if the school is sued successfully, the school owes attorneys fees. And so think about the incentive structure here. It is the student's free establishment right that is in question. The student's free exercise. Yeah, the school, however, is the one who has to defend it. And then if the school loses defending the student, the school is the one who has to defend it and then if the school loses defending

the student the school is the one who has to pay so what does the school do the school's gonna fold every time because where's their incentive to defend a single student's free exercise claim and that's what my law school note was about was the problem of 1983 actually putting its thumb on the scale for establishment clause versus free exercise because of the money involved. And this all started with follow the money. When it comes to free exercise versus establishment, my argument is that the 1983 claims for attorney's fees cause a huge problem where schools have no incentive to ever defend a free exercise

argument in court. They can easily fold to an establishment clause claim and make it go away. There was, and my note pointed to a school that was in fact a Muslim school, and the students were elementary school students during recess praying. Someone sued saying this was Sharia law or whatever their argument was. And the school immediately was like, oh, yep, no more prayer for sure. When in fact, it was at least a very interesting legal question of whether all of these students, elementary school students, so they needed to have an adult in the room with them to pray, whether that was then school sanctioned under Santa Fe. But we never got

that far because the school didn't want to even risk paying 1983 attorney's fees. So I think it's an interesting question. The school administrators are not the ogres, anti-religious ogres necessarily, but the incentive systems have been poorly aligned. This is so interesting. I can't believe we never talked about this in law school, Sarah. Did you publish this in the JLPP? I did. The Journal of Law and Public Policy for those not in the room. Do you want to give readers a volume and an issue number? I very much do not. Thank you, Jenny. You can find Sarah's note if you look.

No, I think that's a good point. I mean, certainly I think probably some of the school administrators here are bad actors, bad faith actors. But certainly a lot of them either don't know the law. We're reminding them now, so now they do. Or you're right. The incentives are screwed up. And one interesting factor, too, you know, this issue is implicated in the culture wars, obviously. And one of the kids at the Oval event, I don't think it was one of the two I've mentioned, but someone else who was telling her story about her religious expression

being stifled by her school said, you know, while things were going fine until Americans United for the separation of church and state sent a letter to the school telling the school that they had to make me stop, you know, whatever it was that she was she was leading some sort of prayer group or something. And that, too, I think, you know, that those are loud voices. And to your point about wanting to avoid liability, the schools are hearing those scary letters to the school. Yeah, we're going to be able to take money in attorney's fees when we succeed. Yes, exactly. And I'm sure that does have something to do with the willingness of schools, the seeming willingness of schools to just throw these kids under the bus and their constitutional rights with them.

I, you know, I'm counteracting that now. There's such a great, robust world of religious liberty litigators who I think a lot of these families are now finding their way to the ADFs and Beckett's and first liberties of the world. And I think that's helping countermand Americans United, but they are a big, scary presence that are in the- So just to build on that, so I used to run the Center for Academic Freedom at Alliance Defending Freedom for several years, and we ran litigation from K through college or through K through PhD. And just to Sarah's point, to show you some of the bind that these schools are in, we had a case once in eastern Kentucky where I believe it was the ACLU sued for establishment clause reasons.

And then this is going back maybe 12, 13 years. So some of the details will be a little hazy. But the ACLU sued the school. The school entered into a settlement with the ACLU to avoid further liability. The settlement was so draconian that the settlement violated the constitutional rights of the students. So then we sued to overturn the settlement. And the school, you know, I had a huge amount of sympathy for the school because here you

have the ACLU coming on one side, then you have ADF coming after they've dealt with the ACLU. And I do think that one of the things that is valuable about regulations like this is they, in essence, they're like a safe harbor. A school administrator, if there's an angry parent or they get a letter from the ACLU or from somebody, they can hold up these provisions and say, we're following DOE guidance. Your beef is going to be with the DOE here. And it provides sort of a clarity and a safe harbor. And I will say this. I do think the situation overall in the U.S. on this point is substantially better

than it used to be. I mean, substantially. I noticed, and Jenny's exactly right, and part of that is because of the growth of robust religious liberty organizations like ADF, like Beckett, and others, that basically right now, if you're a student in the U.S. and your constitutional rights are infringed, you're going to have a free lawyer. I mean, you're going to have it. And so it's substantially better. But the thing I like about clear guidance is it's a great litigation avoidance tool. We don't want people to have to go to court to vindicate their constitutional rights. Going to court is hard. It is not time consuming, expensive. Even with the free lawyer, it's expensive in its own way. That is time out of

work. That is anxiety. I mean, it's a lot. Exposure for your family. And again, these are kids who are at the center of these cases. So yeah. And not all of them are as ornery as I was on the other side. I'm like, you know, David and Jenny are fighting for religious freedom. And I'm like here on the establishment clause side being like, I don't want to pray at orchestra concerts. There was also a kid, by the way, who refused to stand during the pledge and got expelled. And I also was very keen on his First Amendment rights, his free speech rights. So I'm a full First Amendment-y person, I would say. Oh, Sarah, I, my favorite case in the whole constitutional canon practically is West

Virginia v. Barnett. We could do a whole podcast on West Virginia v. Barnett. All right, Jenny, I know you need to get back to the people's work here. I mean, we're all paying your salary and here you are. We appreciate that. Looking forward, is there more, is there possibly more we can expect from the Trump administration on religious liberty, whether from the White House or from the Department of Justice? How do we see this going moving forward? How do you draw attention to it, as you were saying, in schools? What's to come, Jenny Bradley-Lichter? Well, this is and will remain a big priority for the administration and for the president. So there is more to come. I hate having to say this, but can't say too much about it right now. But I will say we're aware of the different quadrants in which this issue lives, right? So we've talked today about the rights of organizations and of individuals.

Both have free exercise rights. We try to be mindful of both. We also work on religious liberty both domestically and internationally, right? Some listeners may know that the president gave a historic speech at the UN General Assembly in September calling on all nations of the world to stop persecuting religious minorities. And that's a big priority for us as well. It's a little bit outside my remit since I work on the Domestic Policy Council, but we all work together and everyone who tracks this issue in the administration is coordinating pretty closely. So we're excited to kind of keep pushing on that

front as well as domestic on these issues that we've discussed and on some other things too. So stay tuned. Certainly more to come. And we are always, I am always in the market for ideas. Folks outside the administration, outside the Beltway are often the best issue spotters because they know kind of what matters to religious entities and to folks sort of just like living their everyday lives and running up against problems that the federal government might be able to help solve. So feel free to send suggestions our way. Jenny, you don't know. Our listeners love to send in suggestions. So guys, you have our email addresses for David and I.

Send us your suggestions for Jenny and I will hit that forward button so fast. You have no idea. Please do. I'm looking forward to it. Jenny, thank you. Yes'm looking forward to it. Jenny, thank you. Yes, thank you, Jenny. It is a chilly day in D.C. and you are warming my heart. It is always a treat to see you. Thank you both. This was really wonderful. Thanks for the invitation. All right. We're going to continue here in just a second after we get Jenny Bradley-Lichter back to the Domestic Policy Council.

back to the Domestic Policy Council. Okay, now that Jenny is on her way back to that big White House on Pennsylvania Avenue, David, we have cert grants. We do. And one of them, I think that sort of the top line cert grant is the Little Sisters of the Poor are back in the Supreme Court. And a lot of folks who've sort of followed this from a distance are going, what? Wait, I thought that was dealt with back in the Obama administration. But no. No, very much, very much still here. I would call this, I did call it in the newsletter, the Morning Dispatch. If you're not subscribing, please do.

I did call it in the newsletter, the Morning Dispatch. If you're not subscribing, please do. That this is like the, you know, Little Sisters Part 3 enjoined and expanded. Yes, I liked that. Yeah. is the Obama administration, as most people remember who listen to this podcast, enacted through regulation, not by statute, but through regulation under the Obamacare statutes, a contraceptive coverage mandate that applied to employers above a certain size and also applied, but there were some exceptions and carve-outs for religious employers that had a conscientious objection to providing contraceptives. And it was an absolute carve-out,

for example, for churches. But if you were a religious organization, say a 501c3 that was not actually a church, you had a different level of exception. And it's complicated, but essentially the Little Sisters of the Poor felt as if the Obamacare regulations were requiring them to facilitate the contraceptive coverage for their employees, and that that violated their rights of religious conscience. The case went up to the Supreme Court. It came to the Supreme Court slightly after the Hobby Lobby case, which had decided 5-4 under RFRA, the Religious Freedom Restoration Act, that Hobby Lobby did not have to provide contraceptive coverage for its employees.

The Supreme Court then took the Little Sisters of the Poor case and sent it back to the lower courts saying, hey, administration, Little Sisters of the Poor, you guys work this out. We're going to give you an... And this is after Scalia's death. So there weren't nine votes on the court that's relevant to why they punted. Yes. So eight justices punted back and they said, work this thing out. In the meantime, Trump is elected. And so all of a sudden the regulatory environment changes. And so the Trump HHS promulgates new regulations that would give the Little Sisters of the Poor the relief from the contraceptive mandate that they requested.

Then states sue, Pennsylvania sues, this is so complicated y'all, but Pennsylvania sues, and lower courts said that the Obama, I mean the Trump regulations went too far, they granted too much religious freedom, and they didn't just enjoin them in Pennsylvania. They enjoin them nationally. I feel like we need a nationwide injunction gong for this podcast. Oh my gosh. We need a nationwide injunction podcast. That is going to give the people what they want. Finally, after all the calls you know unrest in the streets looking for a nationwide injunction podcast okay keep going so this was appealed to the supreme court the supreme court has granted review to basically to decide whether or not the injunctions against the trump

new trump regulations that protect religious freedom are lawful. And so once again, we're going to be up at the Supreme Court, this time with nine justices, to try to determine to what extent do the Little Sisters of the Poor have a religious freedom right, specifically under the Religious Freedom Restoration Act passed in the Clinton administration, to opt out of the contraceptive mandate. And so hopefully we will have some enduring clarity. And I say endure. I'm not sure about that, though, because we're not relitigating the 2016 case. We're now just litigating whether the Trump administration's changes violated the ACA, the initial Obamacare law, because it's not included, it was not delegated to the executive to make these changes, and or violated the Administrative Procedures Act. We're not really,

in some sense, getting to the merits. Well, we're definitely not getting to the merits of the accommodation process that the Obama administration tried for. And we're really not getting to the merits of the initial contraception mandate because that's what the Trump administration got rid of. Yeah. Yes. You know, they could reach it, I guess, if they said, on the one hand, the Trump administration did violate, you know, went beyond the scope of the ACA in getting rid of the contraception mandate. But the contraception mandate also is violating RFRA. I mean, maybe that's where you could end up, but that doesn't seem likely to me. I would agree with that. Here's my hope. My hope is that the hold, I feel pretty confident the holding is going to be, of course, narrow and applicable to the specific question before the court. But there's also going to be dicta. There's also going to be, for those who are not- Living for the dicta. That's what David does. Not steeped in legalese. Dicta is sort of the verbiage and the reasoning all surrounding the holding that will provide some,

hopefully, some sense of where the Supreme Court is on the larger issues. Because, Sarah, we could, I mean, not to raise the prospect. So we have Little Sisters 1, I mean, not to raise the prospect. So we have Little Sisters 1. We have Little Sisters 2, expanded and enjoined. And then if there's a Democratic president, next Democratic president may roll back these Trump-era regs. And then we could have Little Sisters 3, the sistering. That's true. And by the way, lest anyone feel like the name Little Sisters of the Poor gives a misconception of these ladies, they are not to be trifled with.

Yes. Their lawyers are not to be trifled with. When that accommodation process went back down to the lower courts for everyone to, you know, quote, work it out. I think there was, you know, this picture people had in their minds of frail little nuns being like, well, oh, OK, you know. No, for a moment, get a little ranty about the state of our government. This case is such a great illustration of how our system is broken to this extent. Congress passed Obamacare with huge gaps in it, without defining certain terms, without explaining what it meant, And it just sort of punted it to the executive branch. And that's when the Obama administration began to fill in all those gaps. Well, what happens when you have a new administration? The new administration takes

an eraser, erases all that fill in and starts to write in new things. Well, then what? Which set aside whether you agree or disagree with the new administration or the old administration is incredibly difficult for those trying to comply with the law. It costs money to our economy. It is a terrible way to run a railroad, as I like to say. Yes. And this is one thing that makes presidential elections more and more fraught, more and more polarized. And a Supreme Court data. Exactly. All of it. Because what ends up happening is because Congress doesn't do its job, every four years you get a new person in there, or every eight years you get a new person in there with a new eraser and a new pencil who writes in all these new laws.

And, you know, going back to the regulations we just talked about, there's a very good chance that these regs, which are proposed regs, some of them are proposed, may not be fully implemented by the 2020 election and could just be erased after 2020. And this is where we got to have Congress step up, write laws that don't have these gaps, give people certainty instead of just punting everything to the executive and judicial branch. You are singing my song on this. In part, you take more of the executive versus legislative side. I have been really focused on the court

being dragged into these political fights and becoming more and more of an election issue, which, and I've written about this right now, that's a 15 point gap from 2016 of Republicans care more about the court than Democrats in terms of a voting issue. But that's not always going to be the case. And it doesn't matter which side you're on. The court is getting dragged into political fights. It is lowering the faith in the institution in, you know, Pew surveys. It is terrible for the court when now people don't believe they're deciding the law. They believe they're deciding political issues because they are often. Well, they're being punted to them. And this is something that

goes directly to the core of our separation of powers. I mean, the growth of administrative law, which is the law that is created by these executive branch agencies, a lot of people almost call it a fourth branch of government. And that's not too far from the truth. I mean, and some of these executive agents. Oh, I think it's an underselling of the truth. You could be right. And it has become the first branch of government. It's become the way in which people encounter the federal government, almost exclusively

the way in which people encounter the federal government. And it is really dangerous to our system because look at it this way. Man, we're far afield from the Little Sisters, but hey, this is... We're getting back. Faithless electors are coming. Yes. So look at it this way. If you don't live in a swing state or a sort of a swing congressional district, you may go your whole life without casting a meaningful vote in an election that determines the most powerful governmental entities in the United States. Your whole life. Now, tell me that that doesn't contribute to mistrust and alienation in this country.

And with that, now we can go to faithless electors. Oh, perfect segue. nation in this country. And with that, now we can go to faithless electors. Oh, perfect segue. So the next case is the Electoral College. As we all know, we don't live in a direct democracy. We have an Electoral College, and they actually elect the president. It is in the Constitution itself, but then further codified in the 12th, as we'll call it. then further codified in the 12th, as we'll call it. And there's some pretty specific provisions about how all of this will work, when it will happen. But states, including Colorado and Washington, which are the two in question in this consolidated argument coming up,

punish members of the Electoral College who do not vote according to state law. And most of these state laws are that the Electoral College member needs to vote the way that the majority of the state popular vote voted. In both of these cases, in both of these cases they did not vote that way in washington that results in a thousand dollar fine and in colorado it resulted in the vote not being counted and that person being referred for prosecution so i mean these are real penalties and so they have sued that these state laws are unconstitutional, certainly unenforceable, because the Constitution, the federal Constitution, is very clear on the role of the Electoral College, and there's no role for states in all of that. Yeah. I think a lot of people don't realize, and maybe didn't realize until 2016 when this became a topic of conversation, and maybe didn't realize until 2016 when this became a topic of conversation,

that when you cast a vote in your state, you're actually casting a vote for people called, actual human beings called electors. And these actual human beings cast the actual decisive votes in the presidential election after election day, which is something that's completely opaque to everyone because a winner is declared on that night, unless it's 2000, of course. And you just sort of feel like all of this is automatic. And then in 2016, a few people who were actual electors elected by their states to cast votes in the electoral college broke with their states and cast votes for third parties.

Right. Most of them were not flipping from Clinton to Trump or vice versa. They were flipping to, you know, Bob Dole. I mean, it was right. Yeah, it was like, I think one of them, maybe, maybe did Bernie get an Electoral College vote? I can't remember who they flipped to, but you're right. And so these states try to prevent that. And the question is, is that constitutional? And before I give my opinion, I'm really intrigued to hear what your thought is on how this case because of what we were just saying about the politicization of the Supreme Court, to set these rules in advance of an election is a very, very smart thing to do.

So you don't end up with a Bush v. Gore moment. As one of the plaintiffs, the Washington faithless elector pointed out, 10 people were faithless electors in 2016. Those 10 votes would be enough to have caused a crisis in five of the last 58 elections. And so what's to say that 2020 wouldn't be one of those 2024. So this was a very smart thing to do for the institution. And John Roberts as chief justice is nothing if not a smart institutionalist. So, okay, what are my thoughts? I don't understand for a second how these state laws could possibly be constitutional. There, that's my quick analysis. I like, you know, I agree with you. I agree with you. I mean, if you read the Federalist Papers,

if you look at the original public meaning of the Constitution, these electors were supposed to exercise judgment. Yep. That's... Yep. It's not... I understand it is different, but it is not dissimilar in theory from a member of Congress. We have a representative, non-direct democracy. Members are sent to Congress. You could not have a state law saying, in all cases of budget, you will vote for the maximum amount of money for Florida and then throw congressmen in jail when they don't vote for that because they are sent there as representatives. In the same way, we do not have a direct democracy in voting for president. We send members of the electoral

college. If they have to follow the state popular vote, then it is more like a direct democracy and the electoral college would be pointless. There don't need to be human beings doing that. You could simply have the state ratify a piece of paper. Right. Right. If you're going to have actual human beings who are electors, I just don't see how the faithless elector statutes are constitutional. And if this is shocking to some listeners, holy cow, you mean I'm actually electing a representative like my cruddy congressman to go to a location and cast a vote according to what he or she believes is the right thing to do instead of voting directly for Trump or directly for Biden or Sanders, whoever runs against him. Well, you know, there's a remedy if that's shocking to you. And that remedy is a constitutional amendment. But I'm with you. I just. Oh, I thought you were going to say the remedy was to run for the Electoral College, which you absolutely can do. That's correct. I think that's the best remedy.

You go be a faithless elector. So, Sarah, maybe we should run for the electoral college. I can't think of anything I'd like to do less right now, David. But yeah, I mean, that is a remedy. You could run to be an elector. But the true remedy is the Constitution, because the actual meaning of the Constitution here is really pretty crystal clear. But if and when the Supreme Court, which I think it should rule that these faithless elector statutes are unconstitutional, what do you think their public reaction to the extent there is going to be a public reaction? None.

Yeah. There's going to be no public reaction. How about a Twitter reaction? None. There's going to be no public reaction. How about a Twitter reaction? The public reaction will come when, in fact, there are faithless electors that affect the outcome of an election. And then this case will be picked apart six ways to Sunday. follow the constitutional law closely are going to pay close attention to and the kind of case that could become one of the most infamous cases in American history. If you had a 2000 situation, just imagine where it's 270 to 268 and a president of one party loses the popular vote. The one who has 270 in theory in the electoral college loses the

popular vote by 5 million, 6 million. And there's intense pressure. There's people in the streets. You could easily see an elector or two flipping this thing around or someone flipping it just to send it to the House of Representatives to punt it. You can see this happening. to punt it. You can see this happening. Yep. Yeah, exactly. And 2020, if we were ever hurtling towards that, 2020 looks like as good a place as any. So you can definitely hear from us about this case when it comes out in June. It's being argued in April, so I think we can assume it's not going to make its way out the door of First Street until June. And David, you and I will get super into it, even if no one else does. Well, I think, Sarah, in our part of our growth plan for the dispatch,

I think that getting a close analysis of the faithless elector decision is probably going to put us top five iTunes downloads. Almost certainly. By the way, before we go today, I do have two quick items. One, I talked about a book last week about the Johnson impeachment, and I couldn't quite remember all the details of the name. I have it. It's Impeached,, the trial of Andrew Johnson and the fight for Lincoln's legacy by David Stewart. Two, I made a grievous error last week. I conflated two 19th century Supreme Court justices, Samuel Chase and Salmon Chase. Salmon Chase oversaw the impeachment trial of Andrew Johnson. Samuel Chase, earlier in the century, had been impeached and acquitted.

I very much apologize for the mistake, and it is unacceptable, and I have been, you know, taken to the woodshed and beaten appropriately. Not literally. I also made a mistake in the last podcast. I was talking about our U.S. ambassador to Ukraine, Marie Yankovich, and I said Ukrainian ambassador, which is the Ukrainian ambassador would be the Ukrainian who is the ambassador to the U.S., not the American who is the ambassador to Ukraine. So I, too, regret my error and have been taken to a different woodshed and beaten appropriately. Yes, good. Okay. By the way, impeachment trial starts today, David. We are going to have a special joint podcast with the folks from Words Matter, Katie Barlow and Joe Lockhart,

to do some impeachment coverage as things start heating up. They put out the schedule last night, and I don't think this will be a particularly short trial. So let's let things heat up a little bit. We'll talk to Joe and Katie, and we'll come up with a good day to talk to all of our listeners about what's going on in the impeachment trial. Yeah, I'm looking forward to that. And as always, please keep giving us feedback. It has been very, very helpful. We've adjusted the podcast accordingly, as we've said many times. I mean, this is a startup.

It's a work in progress, and we're refining it as we go. So we really do appreciate the feedback. That's David at TheDispatch.com, Sarah with an H at thedispatch.com. And please go to iTunes and rate us. And we've gotten some great feedback on iTunes that is very much appreciated. You got anything else, Sarah? That's it. See you soon, David. All right. Until next week. See you soon, Sarah. © transcript Emily Beynon