Advisory Opinions - Supreme Court Rejects Ban on Public Money for Religious Schools

Episode Date: June 22, 2022

Sarah and David breeze through a few Supreme Court opinions released Tuesday to focus on United States v. Taylor, and how Maine is more rural than Alaska (go figure). David points out that Carson v. Makin, which held that Maine’s “nonsectarian” requirement in schools violated the Free Exercise Clause, is yet another victory for religious liberty in the U.S. And finally, a casual discussion of toddler yoga, skirt skepticism, and how to have fun at your job.   Show Notes: -United States v. Taylor -Carson v. Makin -Peltier v. Charter Day School -CANarchy Craft Brewery Collective, LLC v. Tex. Alcoholic Beverage Comm’n Learn more about your ad choices. Visit megaphone.fm/adchoices

maple syrup we love you but canada is way more it's poutine mixed with kimchi maple syrup on halo halo montreal style bagels eaten in brandon manitoba here we take the best from one side of the world and mix it with the other and you can shop that whole world right here in our aisles find it all here with more ways to save at Real Canadian Superstore. This ad for Fizz is only 25 seconds long, but we had to pay for 30. Those leftover five seconds shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over so you can use it the next month.

Hey, you paid for it, so keep it. Try the other side. Get started at PHYS.ca. If you need some time to think it over, here's five seconds. Ah, do, da-da-dee-da, do-da-do-do. Certain conditions apply. Details at PHYS.ca. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger. And Sarah,

the anthem that DJ Khaled wrote for religious liberty litigators is still valid. Remind us. All I do is win, win, win, win. Oh, God. Great. We've got a major Supreme Court case to talk about. Carson v. Macon, the Supreme Court has decided yet another religious liberty case, yet another victory for religious liberty. We're going to talk all about that. We're also going to talk about a Hobbs Act case that is pretty interesting from the morning hand downs. And then in no particular order, we're going to talk about skirts, beer, and rice.

Is that correct? No particular order? Skirts, beer, and rice. Yes. Yeah. So, well, let's start with SCOTUS, Sarah. Had a number of cases that came down today, and you put them in one and a half are interesting?

Yeah. I mean, maybe one and three quarters. Okay. So that left us with three that were less so. First of all, we had a Medicare secondary payer statute case, which is basically all we need to say about that. which is basically all we need to say about that. True enough. Yeah. Interesting lineup on that one. Breyer joined with the six,

so it was a 7-2 opinion on Medicare reimbursement. Exciting. Next up, workers' comp. Washington's workers' comp law discriminated against federal government and its contractors. I mean, look, it didn't make it into the interesting bucket, but that is a quasi-interesting case. But unfortunately, it wasn't interesting enough. Next up, you have, I think, one of the better named cases, which is Shoup v. Twyford. Yes. That's a good name.

Very good name. This is a death penalty case. A transportation order that allows a prisoner to search for new evidence is not necessary or appropriate in aid of federal court's adjudication of habeas action when the prisoner has not shown that the desired evidence would be admissible in connection with a particular claim for relief. So, I mean, David, you and I have talked about this so much, how much death penalty cases get in terms of court attention, court time. It's a lot. There was also an order from the court today worth a quick mention another death penalty case uh thomas dissenting in this order pretty long dissent thomas noting at the end that the failure to faithfully apply the edpa statute this is the see i still get it wrong anti effective death penalty and anti-terrorism act

yes yeah but why is it edpa i don't know see now i'm gonna look this up anti-terrorism and effective death penalty act edpa there we go uh that it keeps forcing federal courts to intervene in these otherwise state court matters and this is think, just going to be a theme for Justice Thomas going forward about federal courts getting out of the business where state courts can do it in cases where he likes the outcome. I'm sorry to say. Okay, but can we, should we do our three quarters interesting case first? Yeah, let's do three quarters interesting

because it's actually quite interesting, I think. Kind of quirky interesting in my view. Okay, so this case is decided, written by Justice Gorsuch. It's going to be a criminal defense case. And if Justice Gorsuch is writing it, you're right. It means the criminal defendant won. Roberts, Breyer, Sotomayor, Kagan, Kavanaugh, Barrett is the lineup. So it's 7-2 with Thomas and Alito dissenting. This is an interesting exception to my 3-3-3 grouping because Gorsuch will break from the Thomas and Alito triumvirate on, as we've seen, Native American tribal land law and criminal defense. He is really the heir to Justice Scalia when it comes to criminal defense law.

So let's do some quick background on two parts of U.S. statute. One is called the Hobbs Act. The Hobbs Act makes it a federal crime to commit, attempt to commit, or conspire to commit a robbery with an interstate component. This is what a lot of federal prosecutors spend their time on, Hobbs Act robbery, man. It is like bread and butter. Now, there is another one that gets tacked on to Hobbs Act robbery called a 924C. This is for a crime of violence. You basically get a whole other chunk added to your sentence. And as Gorsuch is going to note in this case, it's the difference between 20 years maximum, what this guy was sentenced to, which was 30 years, and the potential for an even longer sentence had he been sentenced to the maximum with the Hobbs Act combined with the 924C.

had he been sentenced to the maximum with the Hobbs Act combined with the 924C. The question in this case is whether you can charge someone with that crime of violence, 924C, on attempted Hobbs Act robbery. So Hobbs Act robbery has threat or use of force as an element of the crime. But attempted Hobbs Act robbery, well, that's going to be the question here. So in 2019, the court held that the residual clause, quote unquote, in that 924C, you know, it said at the beginning that it covers offenses that have as an element the use, attempted use, or threatened use of physical force against the person or property of another, or offenses by their nature involve a substantial risk that physical force may be used. So in 2019, in a case called Davis, the court was like, nah, dog, that is unconstitutionally vague,

too difficult for someone to know which crimes are going to be included in that or not. There's a lot of may, would, maybes, whatever. So it limited 924C to only offenses that have as an element the use or attempted use threat of force. Okay, so here's what's important. Mr. Taylor is a mid-level marijuana dealer in Richmond, Virginia. Him and his buddy decide to do a deal with another drug dealer, except they never plan to do the deal. They, in fact, show up to rob him, hold a gun, tell him to give them his money.

The guy refuses. They shoot and kill him. Interestingly, in order for this to be attempted robbery, I guess they never took the money. I'm a little unclear on that, David. Yeah, it's a very odd set of facts. Yeah. But he's charged with attempted Hobbs Act robbery and that 924C crime of violence because they killed someone. The court here, again, majority opinion by gorsuch says that because they use a categorical approach it doesn't matter what the specifics of mr taylor's crime is what matters is whether

all attempted hobbs act robberies would by necessity force the government to prove attempted use or sorry use of force not attempted use of force, not attempted use of force. And he says, no, he can come up with a scenario where someone plans to rob a bank, does a lot of thinking about it, makes a little map, draws out a note that says, you know, your money or your life. And then he shows up to the bank, crosses the threshold and gets arrested by the police. He committed attempted Hobbs Act robbery, but he never used force. He never handed the note over.

No one was ever threatened. So therefore, as a categorical approach, 924C isn't met for all attempted Hobbs Act robberies. Therefore, it doesn't count for any of them. Just as Thomas and Al alito saying you've got to be kidding me right now so applying this uh is that the exact quote from the um from the descent you've got actually both quote from alice in wonderland that we are through the looking glass when it comes to 924 c uh crime of. There's a lot of Alice in Wonderland

happening. And Justice Thomas pointing out that this exact same thing applied in the Boston bombing case, where they killed people, but because you could come up with some hypothetical where someone charged with their underlying crime, arson, I believe in that case, doesn't have to use force. Therefore, there was no crime of violence. He uses a kidnapping example where, again, the person in question undoubtedly was very violent with the family who he kidnapped.

But because you could come up with a scenario without violence in a kidnapping case, not a crime of violence, Justice Thomas says, that's insane. And we have simply created this categorical approach when we didn't need to. Justice Gorsuch's answer is, let me read you the statute again. It says, have as an element the use, attempted use, or threatened use of physical force. Justice Alito says, fine, I will take your textual argument and I will redefine the word element. All sorts of crimes have alternative elements, and therefore you could simply use that alternative element argument to then say that the government did in this case prove as an element that there

was violence. So isn't that enough? Justice Gorsuch saying, nope. I like, can I read the opening paragraph of Justice Thomas's dissent? Because it's, it reeks of incredulity. It reeks of incredulity. Justin Eugene Taylor and an accomplice pulled a gun on a fellow drug dealer as they tried to rob him. During the attempted robbery, the victim was shot and killed. Taylor pled guilty to using a firearm during an attempted Hobbs Act robbery, which he conceded was a crime of violence. Taylor made that concession because threatening to shoot someone during a robbery is undoubtedly a violent act. Yet the court holds that Taylor did not actually commit a crime of violence because a hypothetical

defendant, the court calls him Adam, could have been convicted of attempting to commit Hobbs Act robbery without using attempting to use or threatening to use physical force. In other words, exactly what you said, Sarah, it's a, if you've got to be kidding me, kind of dissent because wasn't there actual violence here? Yeah, I mean, I am very sympathetic to Justice Thomas's overall point that this is creating absurd results. Justice Alito shares that point, so really the both of them. But I side with Justice Gorsuch because Congress could change that crime of violence language anytime they wanted to and say uh that the element could be attempt itself not attempted use of force

um but that's not what they wrote and i think justice gorsuch is right. Ty goes to the runner on these cases, and I like his sort of philosophical, criminal defense approach. The statute is what the statute is. And if the absurd result seems to result from absurd statutory drafting, it's still a problem with the drafting, not with the court opinion. No, I'm with you.

I'm with you. I'm with you. Okay. The main event, Sarah? When I saw this came out, I was like, oh no, David's about to be super wound up in a good way. I mean, better wound up in a good way for your podcast host. And so I will tell you, David, I went into this really wanting to side with the dissent so we could have a good old fashioned argument. And maybe we'll tell you, David, I went into this really wanting to side with the dissent so we could have a good old-fashioned argument. And maybe we'll have a little bit of one. Yeah. Well, you know, I'm not super wound up about this because I thought that this is about the most obvious result possible after really multiple cases. I couldn't see how... I mean,

it would have been an earthquake for this court to rule against the parents in this case. That would have been a major reversal of First Amendment jurisprudence. But anyway, let's give the factual background here. So this is a case based in Maine. And I did not know this until the opinion, but Maine is apparently the most rural state in the country. That makes no sense. Like, by what? Like, there's no, I looked for a footnote on that, some sort of sourcing. How is Alaska not the most rural state in the country?

It says, it says state in the union. Like, it's not continental. There's no qualifications. Certainly it's not by square foot. Population density? No. I mean, what's the measure here? But the Supreme Court says it, so it has to be right, Sarah, right? I have questions. Well, anyway, let's just concede Maine is pretty darn rural. Can we say that? Yes. It is clearly rural. Yeah. Maine is a rural state and a number of people have,

live in districts, school districts that don't have a secondary school. In other words, you don't have a high school in your school district, which is kind of interesting. Never heard of such in my growing up years, but they don't have a high school in their school district. And so what Maine does is it has a tuition program that allows you to pay, that helps you pay tuition at a private school that you can attend so long as that school is accredited by the state, by the New England Association, and then so long as that school is non-sectarian. Wait, David, I figured out the rural question. Okay. I mean, we have to take a pause

because people are going to already be jumping in the comments section. Oh, yes, they're already in the comments right now. So this makes perfect sense, right? Everyone in Alaska, or rather, there are very few people who live in Alaska. By a higher percentage of those people live in the urban, quote unquote, parts of Alaska.

So the people not living in those urban parts have way more land. They are more rural than anywhere else in the country. But Maine has more people living outside urban areas. Makes sense. Yes. Okay. So once again, the chief is right. We should just defer to the Supreme Court on factual matters.

Supreme Court on factual matters. So requirements of are no, they have to be, the school has to be accredited and it has to be non-sectarian. These parents sued basically saying, hey, look, there's a whole bunch of case law that says if you're going to set up a tuition assistance program and you're going to discriminate against religious schools, then this is, or discriminate against religious entities, this is going to violate the free exercise clause. C.E.G. Trinity Lutheran, which was a recent case, 7-2 case, where the Supreme Court struck down a program that, or Missouri law, that prohibited a church from accessing funds that would allow it to repave a playground with that sort of rubberized material that it explicitly excluded the church referring to a case espinosa that we talked about from last gosh last term, last term? Yeah, last term.

That struck down a limitation on state funding that barred any government aid to any school that was controlled in whole or in part by any church sector denomination. And so you're probably sitting there thinking, wait a minute, how does this case even get to the Supreme Court if you have Trinity Lutheran, if you have Espinoza,

these are recent precedents. Well, the First Circuit basically said, well, no, what you're dealing with, there's two reasons why the main program is different. One is the difference between status and use. In other words, what Espinoza did, what Montana did, is sort of said religious status is what bars you from the program. Here, what they're saying is religious use bars you from the program. Supreme Court said, nah dog to that. The other part that was interesting was that the First Circuit was saying, wait a minute. The First Circuit was saying, wait a minute, this is a little different from Espinoza because what Maine is trying to do is recreate the public's, in essence, trying to do a substitute for public schools. So since a public school isn't available, what we're trying to do is sort of create a public school alternative.

And sectarian schools just can't be a public school alternative. They're just substantially different from public schools. Public schools are always going to be secular. If you're doing a public school alternative, well, then it's going to be secular. schools that were receiving funding were quite different from public schools. It was not like these private schools that were receiving funding in Maine were copycats of public schools just in a private version. They were substantially different. They had substantially different requirements. Even the accreditation requirement allowed for an enormous variation from public schools. So what it began to look like here was not the state taking a neutral approach to religion, but just simply trying to recreate a public school experience was, no, this is the state saying, treating religion differently and worse. And that is a definite no-no under existing precedent. And then, Sarah, I think we can say that we have a new zombie is officially created.

A new zombie precedent is roaming the land, or maybe it was already a zombie, but it's definitely a zombie now. I was going to ask you about this. Yeah, Lakvi Devi. Definitely a zombie now. I was going to ask you about this. Yeah, Lock V. Davey. Lock V. Davey is now sort of moaning and staggering across the landscape. This was a case decided many years ago that said it did not offend the free exercise clause to prohibit when a state scholarship program was prohibiting use of funding for a student who was seeking to enter the ministry.

And I think Locke v. Davy is now just completely confined to its facts. In other words, if the state's going to have a tuition assistance or scholarship program, it can still say, we're not paying for you to become a minister. But for basically any other reason, if there is a religious restriction or a strict restriction on the use of the funds that's located in the religion of the institution, that's going to be struck down. And here's the key quote. This is what state officials should memorize. I tweeted this out. State officials should memorize these words. It's going to prevent a ton of future litigation. And here are the words, quote, we have repeatedly held that a state violates the free exercise clause when it

excludes religious observers from otherwise available public benefits. So this case, I'm not super charged up about it because this is just an incremental extension of a bunch of existing case law, and it would have been shocking if it had come out any differently. All right. I want to talk about some parts of this. Okay. Talk away. So, first of all, let's revisit Locke v. Davey. You summarized it well. I am less certain about what Locke means. One option is you are totally right and it is zombie

precedent and basically it only applies in the state of Washington to a specific program where you can get a degree in becoming a minister. But there's another version, which is A, the court, for instance, says that you could get classes, take, sorry, get money, public money, and then spend that money on university classes on the history of the Bible, for instance, that that wouldn't, you know, offend Lockheed Davey. But there's stuff in between there. So they distinguish it by saying the state doesn't have to pay for the training of ministers. But what if you're getting a degree and you're not going to be a minister? So it is a theological degree, but not one that's for the training of ministers. I'm trying to think of a good example

of what this would be, but certainly a religious school,, your degree is going to be in, I don't know, biology, but you are taking a class on how to be a good Catholic. I don't know that that class exists, but let's pretend it does for a second. That's somewhere in between those two concepts to me, David. They're not training ministers, so it's not the purely zombie version of Locke v. Davy, but it is more than like the history of the Bible, which you could teach from a totally sectarian or non-sectarian point of view. So this would be higher education,

a sectarian course, and you do kind of pay by course, which is different than in like a primary, secondary school environment where you're paying just like sort of the year's tuition. I don't know. Where do you think they fall on that now? I think where they fall on it is I think that's where this religious use versus status issue really comes to the fore. And so this is where the First Circuit has said, wait a minute, it's one thing to fund something that just has a religious, to deny funding to something that just has a religious status, because there's lots of ways

in which a religious institution is functionally indistinguishable from a secular institution. To take an example from my own college, one of my first First Amendment cases was defending a municipal bond issue that financed the construction of athletic facilities and a new library at my college. And one of the ways that we won that case was saying, look, a gym is a gym, whether it's at a religious school or not, or a library is a library, if it's a religious school or not. And so the religious status of the institution wasn't necessarily super relevant to the use of the actual facility. But what this court is saying is, no, no, no, no, no. I mean,

look, let's just cut through all that crap and say, look, a religious school is going to be engaged in religious activity. This sort of status use distinction isn't terribly helpful. And the funds are definitely obviously going to go to educating in religion. They're going to go to the religious identity of the school. That's why I say Locke is basically cabin to its precise facts because, you know, these kids are being taught how to be good Christian kids or they're being taught Christian theology, not as a necessarily as an academic subject, but as a—they're taught, of course, as an academic subject, but not sort of a disinterested academic analysis, but as advocacy as well. pretty darn cabin to its facts. If the court is really diving into, hey, look, religious use here and the status use distinction, forget about that. That's yesterday's news.

Then let's address some of the dissent. This was a 6-3-er, not surprisingly, although somewhat surprisingly because that Trinity Lutheran case was unanimous, right? 7-2. That? 7-2. That was 7-2. Yep. That was a Breyer and Kagan came over and Ginsburg and Sotomayor dissented. That is surprising looking back on it because, again, like a playground is there for children regardless of their religion.

But that was also a cash to a church, state cash straight to a church. And I think that that's what spooked Ginsburg and so did Meyer. Got it. There wasn't that private intermediary, which they've said before, right? If the money goes to a person

and that person then decides to spend the money, that breaks the chain between the state money. Okay. Breyer, I think, has two philosophical points that are interesting. The first one is the play in the joints, that the free exercise clause and the establishment clause do not touch each other. They are not both the floor and the ceiling, that there is some play in between where states have some leeway, some choices to make. My question to you is, is there any play in the joints left after today, or is it just Locke v. Davey as this tiny little play?

I think it's the latter, Sarah, to be honest. And I think, you know, what will bear on this is- So we now have a floor and a ceiling, and there's no choice in between. You can either establish a religion, but you also have to allow everything short of that. Talk to me after Coach Kennedy. Interesting. Because Coach Kennedy, one of the questions is sort of what kind of establishment clause concern can you express that gives you some play in the joints to sort of prevent some kinds of religious expression because of your establishment clause worry.

But I would say, I can't definitively answer to this until after Coach Kennedy, but based on the precedent prior to Coach Kennedy, what I'm going to say is, in this kind of context, you have very little play in the joints. If you're going to enact any kind of context, you have very little play in the joints. If you're going to enact

any kind of policy, if you have a policy that is not motivated by or designed to advance religion, you have a sort of a neutral on its face policy, but then excludes religious participation from that, it's just going down. It's just flat out going down unless it's in Washington and you're funding a scholarship program for ministry. And his name is Josh. Exactly. Josh ended up going to law school with me. That's the sound of fried chicken with a spicy history. Thornton Prince was a ladies' man. history. Thornton Prince was a ladies' man. To get revenge, his girlfriend hid spices in his fried chicken. He loved it so much, he opened Prince's Hot Chicken. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com.

Tennessee sounds perfect. Okay, wait, I want to take a quick detour from Breyer's second philosophical point and just ask you a follow-up question. We had talked about, in some of the CRT context or school curricular context, secular beliefs that are nevertheless becoming increasingly religious in their tenor, nevertheless becoming increasingly religious in their tenor, you know, progressivism or climate change-ism or something like that. And, you know, you correctly batted down that idea that those could be treated as religions. But I want to read you the actual statute in question, the language in the main statute of what it excluded from this program. A sectarian school is one that is associated with a particular faith or belief system and which in addition to teaching academic subjects

promotes the faith or belief system with which it is associated and or presents the material taught through the lens of this faith. Would another way to have attacked this statute be to claim that certain types of schools that were associated with certain political beliefs fell into a belief system

that in addition to teaching academic subjects promoted that belief system? That's an interesting question. Of course, you know, those weren't the plaintiffs here, but... No. That's an interesting question. Of course, you know, those weren't the plaintiffs here, but... No. That's an interesting question. I think the religious identity, because of its intersection with the free exercise clause, enhances the religious...

Enhances the case. But it's hard to say that that is viewpoint discriminatory if it's sort of saying any belief system. But it's a little weird and vague and broad. Weird and vague and broad is a constitutional doctrine. That language felt really broad to me, and I understand why it's broad, because they wanted to include all religions. but I think they might have accidentally included things that we would now not consider religions, but rather strongly held political beliefs with an entire system around them that aren't necessarily associated. So not just a single political belief in climate change, for instance, but like a progressive school that sort of has

three prongs of climate change, LGBTQ acceptance, and something else. I don't know. Well, I'm going to say something that will cause commenters to jump at me. But like, isn't a Montessori school? I was actually going to use the example of a Montessori school and decided not to because I set aside any of the progressive stuff. A Montessori school has a belief system. The problem is that I think that belief system is academic. They're beliefs about how you teach academic subjects. Yeah. So maybe that's a little different. I don't know. That's why in the end I was like, maybe not Montessori, but maybe.

Okay, back to Justice Breyer. He goes through a very brief history of the religion clauses. Very brief. They were written to help create an American nation free of the religious conflict that had long plagued European nations with governmentally established religions.

Through the clauses, the framers sought to avoid the anguish, hardship, and bitter strife that resulted from the union of church and state in those countries. The religion clauses thus created a compromise in the form of religious freedom. They aspired to create a benevolent neutrality, one which would permit religious exercise to exist without sponsorship and without interference. The basic purpose of these provisions was to ensure that no religion be sponsored or favored, none commanded, and none inhibited. This religious freedom in effect meant that people were entitled to worship God in their own way and to teach their children in that way. We have historically

interpreted the religion clauses with these basic principles in mind. And he talks about religious strife kind of repeatedly in some of his historical analysis, mentioning that there are now over a hundred religions in the United States. First of all,

I thought that sounded really low. Are there really only- That sounds super low, yeah. Doesn't that sound- It says, uh, we are today a nation with well over a hundred different religious groups from Baptist. He said over, but like a hundred, it's not 200. Then it's probably not even 150. Like over has to be between a hundred, 150 to me. You sort of set the standard by the number you give um uh with greater religious

diversity comes greater risk of religiously based strife conflict and social division the religion clauses were written in part to help avoid that disunion as thomas jefferson one of the leading drafters and proponents of those clauses wrote to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical. First of all, welcome to our public school system, Thomas Jefferson. Um, I don't know what to tell you and like any number of other things, but fine. Interestingly, David, just this week, Gallup's religion question poll came out. The Gallup's religion question poll came out. The number of Americans who believe in God is the lowest it's ever been.

Between 1944, when they started asking the question, and 2011, more than 90% of Americans believed in God. That number dipped below 90% since 2011, but was going down pretty slowly. Today, it's at 81%. Look, that's still super duper high. But I found Justice Breyer's argument interesting when he's talking about all these different religions and somehow the number of religions causing religious strife. That already struck me as kind of the opposite, actually. The more religions, the less strife, but also fewer people even believing in God,

less religious strife. Like, if your whole argument is the reason we can't do this scholarship is it will cause disunion, which he says repeatedly as well, not a whole lot of evidence for that. No. So, a few things here.

And, you know, everyone knows that Advisory Opinions loves Justice Breyer. We do. But come on, man. So, first, this nonsectarian language, although I believe relatively recent in this statutory framework, this nonsectarian language harkens back to religious strife because this non-sectarian language that we've seen in a lot of state constitutions, these Blaine Amendments, was really originated from and located in anti-Catholic hostility. a hundred years, the thought was, in the advent of these so-called Blaine Amendments, for example, that essentially the public schools were the Protestant schools and the sectarian schools were the Catholic schools. And so there was a very intentional effort put in place at state

after state, almost became an extension of the First Amendment to specifically target Catholic education and Catholic institutions in the West. So this non-sectarian language is rooted in anti-Catholicism. So it's rooted in strife. Number two, the idea that a multiplicity of faiths creates more strife, yikes. I think it's much more likely when you got like two big forces. Look at the Republican and Democrats, which again, I think are now falling under a belief system of their own. But yeah, if you had 100, I think it would be less strifeful. Yeah. I mean, look at Northern Ireland, Protestant versus Catholic. Look at the wars of religion. I mean, this was not, you know, 100 denominations versus each other.

And Federalist 10, you know, Madison makes the argument that actually the number, a broadening number of factions is the way that you deal with division. That if you have more opportunities to sort of expand the sphere of American pluralism, you're going to actually ameliorate what he called the violence of faction more than you're going to enhance it. And so I think he's just flat wrong on this analysis, historically, philosophically. So there's another part, and getting into the law, he's trying to create the distinctions that you mentioned between Trinity Lutheran, the making playground squishy again. Actually, not again. For the first time, playgrounds were not squishy in my day, but they

were sure better than they were in your day. We had the mulch so that when you fell and hurt yourself, you also had sticks in your skin. But I think you just had cement. We just had concrete, man. Just concrete. That's right. Again, arguably, it's actually better than our mulching situation. Maybe it cushioned your fall a little, but the downside was pretty high

in terms of stabbing. But okay, so you have the making playground squishy, and then you have the tuition thing in Montana. And he distinguishes those, as you said, with that religious status versus religious use distinction. But here's what he writes. These distinctions are important. The very point of the Establishment Clause is to prevent the government from sponsoring religious activity itself, thereby favoring one religion over another,

or favoring religion over non-religion. And he quotes some cases, including one famous case, states may not pass laws which aid one religion, aid all religions, or prefer one religion over another. But Justice Breyer, this would, if found the other direction, as in Montana, very much favor non-religion over religion. And it's not, for instance, aiding one religion, all religions, or preferring one religion over another. It's just aiding all schools regardless of their religious status and their religious use. And I actually found his quotes

sort of arguing against themselves. Again, I think I, certainly on this podcast, I am the more religious school skeptic and the establishment clause, I want it to be strong and robust compared to David, who wants it to be mealy-mouthed and weak and for everyone to simply agree with him on all things. We all know that about David. Fake news. Fake, fake news.

But here I have a really hard time seeing how Justice Breyer's very arguments don't cut against this main program where they're saying every school, no matter what, no matter how they're teaching, no matter who their teachers are, as long as it's accredited, you can send your kid to Switzerland and have Maine pay for it or to Texas, anything you want. But they can't teach anything about a belief system. And again, I just question, like public schools are teaching a belief system. They teach, for instance, well, they used to. A lot of them teach that America is great. You know, you recite the Pledge of Allegiance. That's a belief system. Yeah. I just found his dissent super unpersuasive, even though I wanted to find it persuasive.

Completely agree. It cut against him on every level level and i want to go back to this idea that we're somehow more contentious with 100 religions if you're a nation with 100 religions you know what you are as a nation pretty darn tolerant right things are going well yeah pretty darn tolerant which is a message a lot of americans actually need to hear because because this brings me to another point. Rant warning. Okay. How many religious liberty cases do you need to win before you can stop sending out fundraising and political emails saying that religious liberty is on the verge of extinction in the United States? extinction in the United States. Look, religious liberty is about as well protected as a constitutional matter as it's ever been in the whole history of the country. And you keep winning and you're set to keep winning now and in the future. I'm very, I would be surprised, although it's a closer case than this by far, but I would be surprised if coach Kennedy loses his case, uh, here in the next couple of weeks, I would be surprised i would be surprised again it's a lot closer case

than this one but i would be surprised so again you know at some point and this is something it is not religious liberty that is tearing this country apart one of the things that is tearing this country apart is unfounded fears that you're about to lose a liberty that's about as concretely protected right now as it's ever been, not just in American history, but if it's as protected as it's ever been in American history,

you're getting close to as protected as it's ever been in world history. Because we're the most, you know, this American experiment, relatively recent, centered around the first freedom and the Bill of Rights is religious free exercise. And, you know, just stop with the six minutes to midnight rhetoric, please, just please.

All right, there's one part of the majority opinion, though, that I also found super unpersuasive. This is now the Chief Justice writing. The dissents are wrong to say that under our decision today, Maine must fund religious education. Maine chose to allow some parents to direct state tuition payments to private schools. That decision was not forced upon it. The state retains a number of options. It could expand the reach of its public school system, increase the availability of transportation, provide some combination of tutoring, remote learning, and partial attendance, or even operate boarding schools of its own.

Whoa, dude. Whoa. Those are terrible options. So first of all, they can't expand their public schools because the kids live nowhere near each other. So unless each kid gets his own little schoolhouse, that's not an option.

Increase the availability of transportation. David, I had a 45-minute bus ride to school. That's got to be about the max that you can put a kid in elementary school on a bus twice a day listening to all the Garth Brooks songs. Mine was about 30, 35 minutes, I have to say, to Stamping Ground Elementary and Stamping Ground Kentucky. So availability of transportation I don't think is going to solve the problem again, like given the ruralness of where all these kids live. Provide some combination of tutoring,

remote learning, and partial attendance. We just tried that for two years. It was a disaster. It was called Zoom learning and it didn't work. Or operate a boarding school. I mean, okay, I guess that's the best option, actually. We're really the only option that's real out of all of these, which is that Maine says if you don't live near a public school but still want to educate your kid, you have to send them away at five years old

to the boarding school. Yeah. Good luck with that. So look, I actually think his argument would have been stronger if he had said, yeah, unfortunately in a state like Maine where you simply cannot provide public education but are going to have compulsory school attendance,

then yep, you have to fund all the schools. And if religious schools decide to open up, you can set standards that they have to teach certain things. You can even say they have to teach them a certain way, in my opinion. But no, the five-year-old boarding school, I think was the least persuasive part of the opinion.

And it made me rethink the entire majority opinion. Because I was like, if you think that's reasonable, why are you even offering this as an option? As we held in Espinoza, a state, quote, need not subsidize private education, but once a state decides to do so, it cannot disqualify some private schools solely because they are religious. Look, I just think in this case, that's not true. A state need not subsidize private education. It looks like the state of Maine does have to. I did. I will agree with you, Sarah. I found that element unpersuasive.

Kindergarten boarding school did not strike me as a great idea. Zoom school. It's the briskets. So briskets started school yesterday. It was his first day of school. So I'm just like dying at this idea. Now, mind you, he's two. It's not real school. I mean, it's pre-K for two-year-olds. Yesterday, he used a pot to dig in the sandpit, like a pot to boil water in. The idea is like using tools creatively and they can use that however they want. And then he painted. He told me there was proof of painting.

There was red paint on him. But he said he painted with red and yellow. I don't know about that yellow. He's an unreliable narrator. But the idea that I'm sending my, again, I Camille, my oldest daughter, she goes to yoga classes at the gym. She comes back and Lila will have been in the little toddler room and they have yoga classes for the toddlers. Well, you know, Cocomelon, which is a popular Netflix show for toddlers, has namaste time. And Nate at one point was trying to do what we call namaste Nate. He was not very balanced, I'll tell you. Well, what is it when you lean forward? Is it the downward dog? Yeah. Yeah. So if you say to Lila, Lila, can you do yoga? No matter what she's doing, she will stop and do the downward dog. It's so cute.

And they're so bendy. Actually, yoga is totally unnecessary for them, but they should be very good at it. Very bendy. You forget how bendy a toddler is. So bendy. All right. Well, that's Carson v. Macon, a case that we were anticipating. Definitely a second tier but top case, if that makes sense. Yes. Yeah, it is bottom of the top tier. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today.

Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best-selling frame. That's A-U-R-A-Frames.com.

Use code ADVISORY at checkout to save. Terms and conditions apply. All right, David, we have just a couple more little nuggets to get through, little potpourris, if you will. Perhaps we save beer until the end? Let's save beer to the end. Let's go with skirts. Perhaps we save beer until the end?

Let's save beer to the end. Let's go with skirts. Okay. So a charter school in North Carolina requires its female students to wear skirts at their school. David, I gotta tell you, I find it deeply offensive. Why?

Because skirts are not inherently female. If there were some biological difference here that made skirts necessary for women, I'd be like, okay, but skirts are an entirely cultural phenomenon. And I lived in a very rural part of Texas and went to private school for the first three years of my life. And they had school uniforms and skirts were among the options for girls. Um, but we could also wear sweatpants, which I availed myself of every day for three years. Um, so I say all that, like I would not send my child to a school that requires some cultural norm of skirt wearing. I think that's really, really weird.

But the question for the Fourth Circuit is, is it constitutionally barred? The Fourth Circuit held that it was, that it amounted to gender discrimination. Again, I feel that it is gender discriminatory, but the dissent, which has been mocked pretty roundly and totally unfairly, in my view, is asking the smart question, is a charter school the government? Is it a state actor for purposes of 1983? Yes, it is a creation of the state in the sense that it takes state money. It has a contract with the state. But the whole point is that the state doesn't run the school. And with the Fourth Circuit finding that they're state actors, it actually will have huge implications for a whole bunch of other stuff and private actors that receive state money that are now transformed into state actors and have to

abide by the U.S. Constitution and everything that's been incorporated against the states. Again, I want to make very clear, I think the skirt rule is stupid and I think it is discriminatory. But that's not actually the legal question here. The legal question is whether a charter school is a private actor, which they are, or by virtue of taking state money, did they transform into a state actor? Or are they creations of state statute? Yep. Which they are. Yeah. The charter school movement has sort of always been cast as these are public schools.

Yep. But they're not. But the interesting thing is many of them are run by for-profit companies. as these are public schools. Yep. But they're not. But the interesting thing is many of them are run by for-profit companies. There's a private board, the state. It's not like the governor can tell the charter school much of anything. I just like this one line from The Descent. The immediate casualty of the majority's decision is a small part of a dress code at a particular charter school. That is the least of my concerns.

My worry is that the majority's reasoning transforms all charter schools in North Carolina and likely all charter schools in the other states that form our circuit into state actors. As a result, the innovative alternatives to traditional public education envisioned by North Carolina when it passed the Charter Schools Act, and thus the choices available to parents will be limited. But the implications of the majority's decision extend beyond even charter schools. By casting aside guidance from Supreme Court precedent, the majority significantly broadens the scope of what it means for the actions of a private party to be attributed to the state for purposes of 1983. Frankly, it is hard to discern, much less define, the limits of what constitutes state action after the majority's decision. So David, this is like another great example of

bad facts make bad law. Everyone feels like the skirt thing is stupid and extra stupid in part because, and you're not going to believe this, this is literally what they wrote as to why they put girls. I know, no, just hold on to it. The female students need to wear skirts based on the view that girls are quote, fragile vessels deserving of quote, gentle treatment by boys. I don't know how skirts do that. I could imagine a world in which you could wear gentle pants for your fragile legs and have them covered. Particularly because the skirts, as far as I know, are not floor length. The whole thing. It like makes my skin crawl. I don't like it. But that's not what this case was actually about. And I wish people would cover that. The other interesting thing

about this is, so there are private institutions that are deemed state actors, for example, a private prison. But that's because a prison is an inherent state activity. In other words, if the state is outsourcing the maintenance of prisons, it's outsourcing a fundamental, inescapably public function. Education has never really been viewed like that. Education has always been both a public and a private function. And so, if you're going to allow the creation of charter schools, you're not delegating an essential and inescapably public function. this is something that's different. And as evidenced by the main case that we just dealt with. And so, yeah, I found that fascinating.

And interestingly, I kind of kicked myself because I'd always just sort of thought of charter schools as public schools. And I needed to sort of think about, wait a minute, why have I always thought about charter schools as public schools? And it can't be just because the government tells me to. All right. David, I think we should save our race res case. Actually, it's a race res res case. That's going to be your teaser. Race res judicata. Yes. Race, but is it res judicata or res judicata?

It's not France, Sarah. Race, res, res. Res, res judicata. Tell us, tell us commenters, res judicata or res judicata? We're going to save that for Thursday and we'll end with a Fifth Circuit opinion that's getting around, David, written by Corey Wilson, one of the new circuit judges on the fifth circuit and we've talked a lot about how the fifth circuit doesn't seem to

be having any fun anymore but not judge wilson he's having a grand time and i will just read you the beginning of this opinion this case is about beer it turns on the meaning of the word owned a pint-sized word with stout implications for craft brewers in Texas. In 2019, the Texas legislature amended the Alcohol Beverage Code to allow brewers and manufacturers to sell malt beverages to consumers for off-premium consumption, a previously untapped market for craft beer to go. But in a bit of a buzzkill, the legislature also limited beer-to-go sales to brewers and manufacturers that produced no more than 225,000 barrels annually at all premises they wholly or partly owned. Frothy at the prospects, Canarchy Craft Brewing Collective began selling beer-to-go from its two Texas-based breweries.

But TABC ordered them to stop. And that's what this case was about. You know what? I feel like this was a bit of a layup as punny words go. There's so much around alcohol. But good for Judge Wilson in, you know, like coming up with a fun way, how to have fun at your job. That's always important. Though, as someone noted, and I think I agree with them, judges, please don't make us regret asking for more accessible opinion styles. Don't abuse the privilege, Judge Wilson. There's a fine line. There's a fine line.

If you're going to try humor, you better pull it off. The Smith clerks, by the way, also Fifth Circuit, had some interesting footnotes last week. This was about an FBI agent who was suspended and terminated after a dispute with his superiors. Here's the sentence in the opinion. He sent the letters to the court and told his superiors what he had done. Footnote two. There you go.

Giving an F when it ain't your turn to give an F. The wire. Next sentence. They suspended him from investigative activity and assigned him to sit alone in an unused office. Footnote three. Here's footnote three. When they ask you where you want to go

and they are going to ask you where you want to go, do yourself a favor. Keep your mouth shut. The wire. See, that was a missed opportunity. That was a missed opportunity. That was a missed opportunity because if you're talking about sending someone to an empty office,

you've got to cite office space, right? Come on. Come on. Somebody's been watching too much wire and too little office space. Agreed. Well, we'll save rice and rest you to cata for another time.

But I got to say, Sarah, that's why you listed advisory opinions right there. That Carson V. Macon conversation. David loves his own takes. And that's great. I just love this podcast. That's is that so wrong? Is that so wrong?

No. All right. Well, thank you guys for listening. As always, please rate us. Please subscribe. Please check out thedispatch.com. And we'll be back to you not next Thursday, but Friday because we are going to be recording a live podcast Thursday afternoon, evening in the DC area where we're going to have more Supreme Court cases to talk about.

And we're getting down. He means this Thursday, not next Thursday. So it'll come out this Friday. Okay, but this Thursday is the next Thursday. But that's not how we colloquially say next Thursday. Next Thursday means the one after the next one, the current one, whatever. See, this is why it's bad. I'll just say Thursday.

Yeah, Thursday. Congratulations to the state of Maine, 61% rural. Alaska, only 34% rural. Amazing. Yeah. Interesting. Okay. Well, thanks for listening.

And we'll be back on your podcast app on Friday. This Friday. Bye.