UNBIASED - June 20, 2024: Louisiana's New '10 Commandments Law', Here's What The Supreme Court Says; Trump and Biden Finalize Debate Details With Coin Flip; SCOTUS Releases New Decisions; and More.

Episode Date: June 20, 2024

1. Louisiana Enacts New Law Requiring '10 Commandments' Be Displayed in Classrooms; Here's What The Supreme Court Has Said About It (2:21)2. Supreme Court Releases Four New Decisions Today; Upholds Trump's Foreign Investments Tax (14:29)3. Quick Hitters: Snapchat Settles Lawsuit for $15M, Gov. DeSantis Sued For Wrongful Termination, RFK Jr. Fails to Qualify for CNN Debate, Trump and Biden Finalize Debate Details with Coin Flip, Oakland County Mayor's House Raided By FBI (22:30)Limited Edition 'UNBIASED' Hats Dropping June 26th!Support ‘UNBIASED’ on Patreon Subscribe to Jordan's Email List.Watch this episode on YouTube.Follow Jordan on Instagram and TikTok.All sources for this episode can be found here.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

Kick off an exciting football season with BetMGM, an official sportsbook partner of the National Football League. Yard after yard, down after down, the sportsbook born in Vegas gives you the chance to take action to the end zone and celebrate every highlight reel play. And as an official sportsbook partner of the NFL, BetMGM is the best place to fuel your football fandom on every game day. With a variety of exciting features,

BetMGM offers you plenty of seamless ways to jump straight onto the gridiron and to embrace peak sports action. Ready for another season of gridiron glory? What are you waiting for? Get off the bench, into the huddle, and head for the end zone all season long. Visit BetMGM.com for terms and conditions. Must be 19 years of age or older. Ontario only. Please gamble responsibly. Gambling problem? For free assistance,

call the Conax Ontario helpline at 1-866-531-2600. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Welcome back to Unbiased, your favorite source of unbiased news and legal analysis. Welcome back to Unbiased. Today is Thursday, June 20th, and this is your daily news rundown. This is also going to be a longer episode than usual just because we do have a lot of ground to cover. I'm going to spend a decent amount of time on Louisiana's new Ten Commandments law and go over some Supreme Court precedent, constitutional issues, things of that nature. We'll then run through the Supreme Court decisions that were released today, and we'll finish with quick hitters. But before we get into today's episode, I do just want to note a couple of things. First, don't forget my limited edition Unbiased Hats are

going live next week on Wednesday. So here's the deal. I will be posting to Instagram once that shop is live. But in case you want the site on your radar ahead of time, the website is unbiasedshop.com. Unbiasedshop.com. It's just a countdown as of now. I will be giving early access to my Patreon members and my email subscribers. So if you want early access, I'll have a link to both the Patreon and my email list in So if you want early access, I'll have a link to both the Patreon and my email list in this episode description. If you do one or the other, you'll get the password for early access once it's available.

For those not familiar with Patreon, it's basically a monthly donation. So those of you who want to support me in some way can sign up for Patreon. You'll automatically contribute $6.99 every month, and that's one way you can get early access. The other way is completely free, so you'll just go to jordanismylawyer.com slash subscribe, enter your email address, you'll get an email notification once early access becomes available.

That's the hat announcement. Now, for the final announcement, I am almost positive, 99% sure, unless there's some sort of unforeseen circumstances, I will be going live for a portion of the presidential debate next week. The first debate between Biden and Trump is one week from today on the 27th. I'm thinking I'm going to go live for 30 minutes or so, and we can have a little watch party. I won't be commentating or fact checking or anything like that while the debate is happening. So it'll be more of just us watching together and then during a commercial break, we can chat a little bit. So stay tuned for that. If you're not following me on Instagram, now is the time to do that because that's where I will

be going live on the 27th at JordanIsMyLawyerIsMyInstagramHandle. And now, without further ado, we can get into today's stories. Yesterday, the governor of Louisiana signed HB 71 into law, which mandates that classrooms in public schools and non-public schools that receive state funding display the Ten Commandments. Let's talk about what the law actually says first, and then we'll talk about the constitutional challenges that it will face and what the Supreme Court has said about this issue in the past. What this new law says is that the nature of the display will be governed by each school district, but the minimum requirements are that the Ten Commandments are displayed on either a poster or a framed document that is at least 11

by 14 inches, and that the text of the commandments be the central focus of the display and printed in large, easily readable font. The law then goes on to say what the text has to say, which is this, quote, the 10 commandments, I am the Lord thy God, thou shalt have no other gods before me. Thoualt not make thyself any graven images. Thou shalt not take the name of the Lord thy God in vain. Remember the Sabbath day to keep it holy. Honor thy father and thy mother, and thy days may be long upon the land which the Lord thy God giveth thee. Thou shalt not kill. Thou shalt not commit adultery. Thou shalt not steal. Thou shalt not bear false witness against thy neighbor. Thou shalt not covet thy neighbor's house. Thou shalt not covet End quote.

Now, the ACLU of Louisiana, which is the American Civil Liberties Union of Louisiana, has already said it will be filing a lawsuit immediately along with three other groups. They plan to argue that this law goes against already existing Supreme Court precedent and would result in unconstitutional religious coercion of students. So what is that already existing Supreme Court precedent they're talking about? Well, in 1980, the Supreme Court ruled in a case called Stone v. Graham. In that case, Kentucky had enacted a law that required the posting of the Ten Commandments on the wall of each public classroom. So basically the same exact situation as what's going on in Louisiana. The Supreme Court in Kentucky upheld the law, but then it went to the Supreme Court of the United States. And the Supreme Court of the United States said this law was unconstitutional. And in ruling that way, the

court relied on a test set forth in an earlier case called Lemon versus Kurtzman. This test is sometimes referred to as the Lemon test, and it's used to determine whether a challenged state law is permissible under the Establishment Clause of the Constitution. What the Establishment Clause says is that Congress shall make no law respecting an establishment of religion. So the Lemon Test is as follows. Here's what it says. It says, first, the statute must have a secular legislative purpose, meaning a purpose other than a religious basis. Second, its principle or primary effect must be one that neither advances nor inhibits religion. And finally, the statute must not foster an excessive government entanglement with religion. If a statute violates any, not all, but any of these

three principles, it must be struck down. So what the court said in stone when evaluating the constitutionality of Kentucky's Ten Commandments law is that the law had no secular legislative purpose. It didn't serve any non-religious purpose, and it was therefore unconstitutional. Now, the state of Kentucky had tried to argue that the statute did serve a non-religious purpose, because at the bottom of each display of the commandments, the following note was to be added in small print. Quote, the secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western civilization and the common law of the United States. End quote. And while the Kentucky court agreed with this argument, the Supreme Court said no. The preeminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature.

The Supreme Court, in its majority opinion, said, quote, The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The commandments do not combine themselves to arguably secular matters, such as honoring one's parents, killing or murder, adultery, stealing, false witness, and covetousness. Rather, the first part of the commandments concern the religious duties of believers, worshiping the Lord God alone, avoiding idolatry, not using the Lord's name in vain, and observing the Sabbath day. Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the school children to read, meditate upon,

perhaps to venerate and obey the commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause." So the Supreme Court in stone was very clear about this specific issue. Now, can the justices overturn prior precedent? Sure. But in order to do so, they have to run through stare decisis, which is the stringent framework that the court has to use to justify overruling prior precedent. You know, they've overruled prior precedent in the past. It's not an impossibility. It's just to say that it would be difficult for the court to justify such a reversal. That begs the question, though, why would Louisiana enact

such a law if the court has been so clear as to where they stand? The answer is why not, right? In their eyes, worst case it gets struck down, best case it gets upheld, so you might as well try. What's interesting here, though, is that Louisiana's law made no mention of any secular purpose. Kentucky's law required that small print under the commandments, which was, you know, intended to tie in some secular legislative purpose, but Louisiana's law didn't even do that. So Louisiana's argument, if any, is actually much less likely to succeed than Kentucky's was based on the lemon test. Now, when I posted about this story to Instagram last night,

someone had asked if it matters that Louisiana's law says that schools don't have to use school funds to purchase the displays, but can instead accept donations. No. In stone, the court specifically said it does not matter that the posted copies of the Ten Commandments are financed by voluntarily private contributions for the mere posting of the copies is what is what violates the establishment clause. So it doesn't matter whether schools are using school funds, you know, to

provide these displays or private funds. It doesn't matter. With all of this said, let's talk about the potential argument on the other side. In Stone, Justice Rehnquist wrote a dissent, meaning he disagreed that the posting of the Ten Commandments on school walls violated the Establishment Clause. And what he said is this, quote, The court rejects the secular purpose articulated by the state because the Decalogue, which is another word for Ten Commandments, is, quote, undeniably a sacred text. It is equally undeniable, however, as the elected representatives of Kentucky determined that the Ten Commandments have a significant impact on the development of

secular legal codes of the Western world. The Establishment Clause does not require that the public sector be insulated from all things which may have a religious significance or origin. This court has recognized that religion has been closely identified with our history and government and that the history of man is inseparable from the history of religion. Kentucky has decided to make students aware of this fact by demonstrating the secular impact of the Ten Commandments. The court's emphasis on the religious nature of the first part of the Ten Commandments is beside the point. The document as a whole has had significant secular impact, and the Constitution does not require that Kentucky students see only a redacted version containing only the elements with directly traceable secular effects, end quote.

So that was Rehnquist's dissent in stone in 1980. But 25 years later, in 2005, Justice Rehnquist was now Chief Justice Rehnquist's dissent in stone in 1980. But 25 years later, in 2005, Justice Rehnquist was now Chief Justice Rehnquist. And on June 27, 2005, Chief Justice Rehnquist wrote for the majority in an opinion called Van Orden versus Perry. This time, it was dealing with the Ten Commandments again, this time in government buildings. The question was whether the display of the Ten Commandments outside of the Capitol building in the state of Texas violated the Establishment Clause. And in that case, Chief Justice Rehnquist, in writing for the majority and finding that the commandments at the state capitol did not violate the Establishment Clause,

he opted not to use the Lemon Test, which was the test used in stone, and he instead looked at the nature of the monument itself, as well as the nation in stone, and he instead looked at the nature of the monument itself, as well as the nation's history. And he wrote in part, quote, in this case, we are faced with a display of the Ten Commandments on government property outside the Texas state capitol. Such acknowledgments of the role played by the Ten Commandments in our nation's heritage are common throughout America. We need only look within our courtroom, referring to the Supreme Court. He says representations of the Ten Commandments adorn the metal gates lining the north and south sides of the courtroom, as well as the doors

leading into the courtroom. Moses also sits on the exterior east facade of the building, holding the Ten Commandments tablets. Similar acknowledgments can be seen throughout a visitor's tour of our nation's capital. End quote. Rehnquist continues, quote, of course the Ten Commandments are religious. They were so viewed at their inception and so remain. The monument, therefore, has religious significance. According to Judeo-Christian belief, the Ten Commandments were given to Moses by God on Mount Sinai. But Moses was a lawgiver as well as a religious leader, and the Ten Commandments have an undeniable historical meaning. Simply having religious content or promoting a message consistent with a religious

doctrine does not run afoul of the Establishment Clause. But Rehnquist then differentiates between the commandments at the state capitol and the commandments in classrooms. And what he writes is this. He says, quote, There are, of course, limits to the display of religious messages or symbols. For example, we held unconstitutional a Kentucky statute requiring the posting of the Ten Commandments in every public school room. In the classroom context, we found that the Kentucky statute had an improper and plainly religious purpose. As evidenced by Stone's almost exclusive reliance upon two of our school prayer cases, it stands as an example of the fact that we have been particularly vigilant

in monitoring compliance with the establishment clause in elementary and secondary schools. The placement of the Ten Commandments monument on the state Texas Capitol grounds is a far more passive use of those texts than was the case in Stone, where the texts confronted elementary school students every day, end quote. So that was 2005. So what we can take away from these decisions is this. The court relies heavily on this nation's history and tradition. We know that, especially when there's a conservative majority. And certain justices find that in places like courthouses, national monuments, government buildings, things of that nature, the Ten Commandments have a place because of the role that they have played in this nation's history. Those commandments, namely, you know, thou shalt not kill, have played a role, a big role, in establishing the laws of our nation. But that same rationale,

allowing the Ten Commandments on government property, does not apply to classrooms. The court has been very clear about that, especially primary and secondary education. So that's what we know based off of Supreme Court precedent. As I said earlier, precedent can always be overturned, but it would be difficult. It wouldn't be impossible. So just keep all of that in mind. And now you're very well informed on the issue. Much to do about the Supreme Court today. We're moving on to other Supreme Court news. The Supreme Court released four new decisions at 10 a.m. this morning.

Three of them in criminal cases, one in a constitutional tax-related case. Nothing too controversial, so we'll keep the discussions relatively short. We'll actually focus more on the first decision than the last three, but keep in mind the court is releasing more opinions tomorrow. The justices still have a ways to go with less than two weeks left in their term, so we may get four more decisions tomorrow. We could possibly even get more, but we'll have to see how they decide to, you know, handle the next week and a half or so. The first opinion today was in a case called Moore v. United States. This was the constitutional tax case, and the question for the court was whether the 16th Amendment authorizes Congress to tax

unrealized sums without apportionment, specifically when it comes to foreign investments. So let's break that down a little bit. Congress, in accordance with the 16th Amendment, generally taxes the income of American business entities in one of two ways. Some entities are taxed on a pass-through basis where the entity itself does not pay taxes, but instead the entity's income is attributed to the shareholders or partners who then pay taxes on that income, even if the entity hasn't distributed any money or property to them. But some entities do pay taxes directly on their income. However, when it comes to American-controlled foreign entities, Congress treats those entities as pass-through entities. The International Revenue Code attributes income of those business entities

to American shareholders and taxes those shareholders on that income. In 2017, under the Trump administration, Congress passed the Tax Cuts and Jobs Act. In doing so, Congress imposed this one-time backward-looking pass-through tax on some American shareholders of American-controlled foreign corporations. And this was intended to address the trillions of dollars of undistributed income that had been accumulated by these foreign corporations over the years. And in this case, Moore versus United States, the Moores, who were a couple that had invested in an American-controlled foreign corporation, sued, claiming that this new tax violated the Constitution because, in their eyes, the tax was an unapportioned

direct tax on their shares. So the question for the court became, can Congress tax unrealized sums without apportionment? And the Congress held today that this Trump-era tax, which attributes the realized and undistributed income of an American-controlled foreign corporation to the entity's American shareholders and then taxes the American shareholders on their portions of that income, is within Congress's constitutional authority. Justice Kavanaugh delivered the opinion from the court, and he wrote in part, quote, the court's longstanding precedents plainly establish that when dealing with an entity's undistributed income, Congress may either tax the entity or tax its shareholders or partners. Whichever method Congress chooses, this court has held that the tax remains a tax on income, end quote. The decision was 7-2, with the two dissenting justices being Justice Thomas and Justice Gorsuch. Now, the final three decisions of the day were in criminal cases,

and by their nature, in order to understand each of these cases, you kind of have to have an understanding of criminal law and the underlying rules of criminal procedure. So while I will dive into that a little bit, I'm going to keep these discussions relatively short. I just unfortunately don't have the time to do, you know, a whole criminal law course when I'm doing daily episodes, but I'll still cover what I need to. So the first decision was in a case called Chiaverini v. City of Napoleon, Ohio. This case dealt with malicious prosecution claims under the Fourth Amendment. And in short, a man was arrested on three charges, which were later dropped, but he sued the officers for malicious prosecution. On appeal, the Sixth Circuit held that because there was probable cause to charge this man with two of the three misdemeanors, the malicious prosecution claim has to fail. So the question for the Supreme Court was, does the presence of probable cause

for one or two charges categorically defeat a malicious prosecution claim related to the other charges? And the Supreme Court answered that question in the negative today. In other words, each charge has to be supported by probable cause for a malicious prosecution claim to fail, not just some of the charges. So the third decision of the day was in a case called Diaz v. United States, and this one dealt with drug trafficking and what a witness can testify to. Diaz was caught with 54 pounds of meth in her car at the southern border trying to cross over into the United States. She was subsequently charged with importing methamphetamine, which requires the government to prove that she knowingly transported the drugs. Diaz, of course, said she did not know

the drugs were in the car. So at trial, the prosecution calls in a Homeland Security special agent to testify as an expert witness that drug traffickers generally do not entrust large quantities of drugs to people who are unaware that they are transporting them. Now, there's this rule in evidence that says in a criminal case, an expert witness cannot state an opinion about whether the defendant did or did not have a mental state that constitutes an element of the crime charged. the witness testified Diaz was ultimately found guilty and she appealed. And one of the reasons for her appeal was that the agent's testimony violated that rule of evidence. Well, on appeal, the Ninth Circuit ruled in favor of the government

and held that because the agent didn't explicitly state an opinion that Diaz herself knowingly transported the drugs and his testimony was more general, his testimony was permissible. And the Supreme Court agreed today. Justice Thomas, in writing for the majority, wrote, quote, in experts' conclusion that most people in a group have a particular mental state is not an opinion about the defendant and therefore does not violate the rule of evidence. End quote. This was a six to three decision with Justices Gorsuch, Sotomayor, and Kagan dissenting. And the fourth and final decision of the day was in a case called Gonzalez versus Trevino. And this dealt with a retaliatory arrest claim. In a nutshell, a city council member

in southern Texas, her last name is Gonzalez, started a petition to oust the city manager. One day, the city mayor, the defendant Trevino in this case, and who seemingly was not on board with with Gonzalez ousting the city manager, came up to Gonzalez and asked her for the petition that she had started to oust the manager. Gonzalez said she didn't have it. And Trevino told her to check her binder. Gonzalez opens her binder and it's in there. But she says she didn't put it there. So Trevino, the city mayor, then goes to the city police and lets the city police know what happened. They open this investigation and Gonzalez is ultimately arrested for violating a state

anti-tampering statute. Her charges are dismissed, but she brings suit against Trevino, the local police, and one other person for retaliatory arrest. The defendants have tried to have the case dismissed on the basis that the existence of probable cause defeats a retaliatory arrest claim, similar to the case we just talked about a few minutes ago. And on appeal, the Fifth Circuit dismissed Gonzalez's case after applying Supreme Court precedent to the facts of the case. So Gonzalez then brings it to the Supreme Court. And the question was just simply, did the Fifth Circuit properly apply the

precedent in this case or not? And today the justices said no. So what this does is it sends Gonzalez's case back to the Fifth Circuit for the Fifth Circuit to reanalyze the case based on the Supreme Court's instruction. This decision was 8-1 with Justice Thomas dissenting. So it's safe to say after about 25 minutes that that's enough about the Supreme Court for one day. We're going to now finish with quick hitters. First, Snapchat will pay $15 million to settle a three-year lawsuit brought by California's civil rights agency that claimed Snapchat discriminated against female employees, failed to prevent workplace sexual harassment, and retaliated against women who complained. Snapchat said it disagrees with the claims, but that the settlement was the right thing to do to avoid costly litigation.

A former employee of the Florida Department of Law Enforcement is suing Governor DeSantis and his top aides for wrongful termination, accusing them of forcing him to retire after he refused to carry out orders that he says were illegal or inappropriate. Shane Deskin says he was fired after he blew the whistle on violations of state public records laws, illegal orders to arrest demonstrators without probable cause, and directives to obtain photos and personal information of migrants flown to Florida without legal justification. A DeSantis spokesperson declined to comment on the new lawsuit, saying the administration would address the allegations in court. CNN confirmed today that RFK Jr. has failed to meet the requirements for the network's upcoming June 27th presidential

debate. The qualification window closed just after midnight on Thursday. According to current polls and ballots, Kennedy has not yet hit the polling threshold of 15% in at least four approved national polls and has not hit the ballot threshold, which you need to have enough states to have 270 electoral votes. Currently, he has hit the 15% polling threshold in three approved national polls and is currently on the ballot in 10 states, but is held up in verification status or application windows in many other states. Don't forget, too, that just last month, Kennedy's campaign filed a Federal Election Commission complaint against not only CNN, but also both Biden and Trump's campaigns, accusing them all of setting up this debate

illegally. And on a related note, there was a coin flip today to determine the podium placement and order of closing arguments at the June 27th debate. The coin landed on the Biden campaign's pick, which was tails, and that meant that his campaign could either choose Biden's podium placement or the order of closing statements. Biden's campaign chose to pick the podium position, which meant that Trump's campaign chose whether he would deliver the first or last closing statement. Ultimately, Biden chose the right podium position and Trump chose to close last. And finally, the mayor of Oakland, California, Shang Tao, was escorted out of her home

by FBI agents this morning as they conducted a raid. Details of the raid have not been confirmed, at least had not been confirmed when I started recording this episode. Neither Tao nor her staff have returned requests for comments, but as of 9.30 Pacific time this morning, agents were still on site. Tao is currently facing a recall vote in November

after being under intense criticism for the city's crime rates and the departure of the Oakland A's baseball team. That is what I have for you today. Thank you so much for being here. I hope you have a fantastic weekend. Stay tuned for Supreme Court decisions tomorrow, and I will talk to you on Monday.