UNBIASED - June 24, 2024: Will Women Have to Register In The Draft? Your Questions Answered. Plus Supreme Court Agrees to Hear Case Re: Gender Transition Bans for Minors, and More.

Episode Date: June 24, 2024

1. Louisiana 'Ten Commandments Law' Update: How Louisiana Is Trying to Get Around Supreme Court Precedent (1:13)2. Supreme Court Agrees to Hear Case Challenging Constitutionality of Tennessee Law Banning Gender Transition Care for Minors (6:02)3. Will Women Have to Register for the Draft? Are Men Being Registered Automatically? Answering Your Questions About the FY2025 NDAA (13:47)4. Quick Hitters: FBI Releases Annual Active Shooter Incidents Report, CBP Releases May Border Encounter Numbers, Kremlin Spokesperson Warning of 'Consequences' for U.S. (16:46)Limited Edition 'UNBIASED' Hats Dropping WEDNESDAY - Shop Here.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

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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 Monday, June 24th, and this is your daily news rundown. If you're watching this on YouTube, you may notice my outfit is a little different than my usual go-to. First time since I started doing video, actually. But that's because this week is a special one. My limited edition Unbiased hats are going on sale Wednesday night at 5 p.m. If you're a Patreon member or you've subscribed to my email list, you will get a code with that.

The code will grant you early access. Essentially, I'll either be sending that out Tuesday night or Wednesday morning. Make sure that, you know, you're by your email, whatever it is. That way you can snag one. The website is unbiashop.com if you want to keep it on your radar. I will be giving you these updates throughout the week, so you'll be ready to go once the drop is live, but that is the link to the site if you're interested. All of the links you need to either get early access or just stay ready for the launch are in

this episode description. So you'll find my Patreon link, my email subscription link, and then also the actual merch website link in this episode description. So everything can be found there. But without further ado, let's get into today's stories, starting off with an update to a story from last week. One of the bigger stories last week was about this new law out of Louisiana that requires the Ten Commandments be posted on classroom walls. And I followed that story up with a bit of a constitutional analysis on Thursday. I discussed a 1980 Supreme Court case called Stone v. Graham, a more recent 2005 case called Van Orden v. Perry. Both dealt with the constitutionality of displaying the Ten Commandments at schools and on government property. But I want to add or edit

in a way just a small part of that discussion. If you haven't listened to Thursday's episode yet, you may want to do that, at least listen to the first story, just because this part will make a little more sense. But remember how I talked about in the Stone decision, the main finding from the Supreme Court was that Kentucky's law requiring the posting of the Ten Commandments served no secular legislative purpose. There was no reason for it outside of religion, and therefore it failed the Lemon Test and was unconstitutional as violating the Establishment Clause. Well, I had also said that this was interesting because Kentucky at least included this provision in their law, which tied the commandments to some educational purpose. And

I had said that Louisiana didn't even do that, which meant that the argument for upholding Louisiana's law would actually be weaker than Kentucky's law. But that was before the text of the enrolled version of Louisiana's law became available. And now that we have the full text of Louisiana's law, we can tell that Louisiana knew exactly what they were doing. They're familiar with the precedent in Stone. They're familiar with the precedent in Van Orden. They tailored their law accordingly. In other words, Louisiana lawmakers knew that they better really tie in in educational purpose to have a solid chance at their law being upheld, right?

Because that's what the court in stone said. So keep in mind, Kentucky's law, which was struck down, required that under the Ten Commandments, there would be text in small print that said, 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. This was Kentucky's attempt at trying to tie in the display of the Ten Commandments to a secular legislative purpose, but the Supreme Court said that wasn't enough. So here's what Louisiana's law says. What Louisiana's law says is this, quote, the Ten Commandments shall be displayed with a context statement as

follows. The history of the Ten Commandments in American public education. The Ten Commandments were a prominent part of American public education for almost three centuries. Around the year 1688, the New England Primer became the first published American textbook and was the equivalent of a first-grade reader. The New England Primer was used in public schools throughout the United States for more than 150 years to teach Americans to read and contained more than 40 questions about the Ten Commandments. The Ten Commandments were also included in public school textbooks published by educator William McGuffey, a noted university president and professor. A version of his famous McGuffey Readers was written in the early 1800s and became one of the most popular

textbooks in the history of American education, selling more than 100 million copies. The Ten Commandments also appeared in textbooks published by Noah Webster, in which were widely used in American public schools, along with America's first comprehensive dictionary that Webster also published. His textbook, The American Spelling Book, contained the Ten Commandments and sold more than 100 million copies for use by public school children all across the nation and was still available for use in American public schools in the year 1975, end quote. So this entire block of text is Louisiana's way of tying the display of the Ten Commandments back to a secular legislative purpose, which we know is required for a law like this to pass constitutional muster. So essentially, Louisiana is saying, look, we're not just displaying the Ten Commandments by themselves. We're requiring that under those Ten Commandments, context is given so that students also understand the history of the Ten Commandments within the American public school system. legislature's intent to ensure students in public schools understand and appreciate the foundational documents of our state and national government. Now, will this be enough? We don't know, but this

is obviously Louisiana's attempt to get further than Kentucky was able to. So I just wanted to provide you with that little update. That way, you know, you have all of the relevant information and you're up to date with everything. And with that, we can move on to today's story, which is that the Supreme Court has decided to step into the fight over transgender rights when it comes to state bans on gender transition treatments for kids. The Supreme Court released a list of orders this morning, which is when the justices tell us which cases they will and won't hear in their upcoming term, which starts in October. One of the cases that the justices agreed to hear is a case called United States v. Scermetti. And the issue in this case is whether a particular Tennessee law violates the Equal Protection Clause of the 14th Amendment.

That law specifically prohibits all medical treatments intended to allow, quote, a minor to identify with or live as a purported identity inconsistent with the minor's sex or to treat purported discomfort or distress from a discordance between a minor's sex and asserted identity, end quote. A few things to note about Tennessee's law before we get into this case. One, it also prohibits surgical procedures, but the fight in the Supreme Court is specifically over prescription treatments. So puberty blockers, hormones, things of that nature, not the surgical component. Two, there is no caveat in Tennessee's law for parental consent.

It's just a categorical ban on all treatments, whether or not a parent consents to it. This is obviously a little different than some other state laws we've seen, which allows for treatment if the parent or guardian signs off on it. And also, without that parental consent exemption, Tennessee's law also presents this separate due process issue as well. But the third thing worth noting is that Tennessee's law does provide an exemption for minors that are seeking treatment for either a congenital defect, precocious puberty, disease, or physical injury. So Tennessee enacted this law and was sued by

three transgender teenagers aged 12 to 15 their parents and a tennessee doctor the district court issued an injunction which blocked the law from taking effect because it found that the law discriminates on the basis of sex is therefore subject to heightened scrutiny and will likely fail once the merits of the case are heard. Tennessee appealed that injunction, and on appeal, the Sixth Circuit reversed and upheld the law. The United States then got involved at that point and appealed the Sixth Circuit's decision to the Supreme Court. Now, what's important to the conversation here are the varying levels of scrutiny that a court can apply to an equal protection issue. The three levels of scrutiny

are strict scrutiny, immediate scrutiny, and rational basis. To make this relatively easy, the level of scrutiny that a court decides to apply will generally dictate whether the government will win or lose. For instance, if a court applies strict scrutiny to a challenged law, this is the highest level of scrutiny and the government will almost always lose. If a court applies intermediate scrutiny, it's hard for the government to win, but there's a better chance. And with rational basis, the bar is quite low. The government just has to show that there's a rational basis for the law, and so it's easy for the government to survive a challenge under rational basis review. Now, the laws that are automatically subject to scrutiny are those that apply

to protected classes, race, religion, and national origin. Any class outside of those three classes, including sex and gender, have to go through this other test, which will determine what level of scrutiny will apply to the challenge. In this case, the Sixth Circuit Court of Appeals determined that Tennessee's law was only subject to rational basis review because the law regulates sex transition treatments for all minors, regardless of sex. Therefore, Tennessee only had to prove that it had a rational basis for the law. However, the issue of whether discrimination based on sex is subject to heightened scrutiny is one that's been widely debated. And also, if I say scrutiny wrong, it's just because it's one of those words I have a hard time saying, so don't come for me. It's just a thing, a thing with me, okay? So this issue has been widely debated. In fact, the district court in this case found exactly the opposite of the

Sixth Circuit. The district court found that Tennessee's law is subject to heightened scrutiny, opposite of rational basis, because it does discriminate on the basis of sex. When it comes to gender identity and sexual orientation, the justices have not been so clear as to what level of scrutiny applies. For example, in 2015, when the Supreme Court upheld the right to same-sex marriage, the court suggested that discrimination based on sexual orientation can violate the Equal Protection Clause, but didn't go as far as to decide what level of scrutiny applies. In 2020, the Supreme Court held that gender is a protected class, but that case was in the context of Title VII of the Civil Rights Act, not the Equal

Protection Clause. And the reason there's a discrepancy there is because of the way the two are written. Title VII of the Civil Rights Act specifically makes it unlawful for employers to discriminate against someone on the basis of race, color, religion, sex, or national origin. Whereas the Equal Protection Clause, you know, textually just says the government can't make laws that interfere with our privileges or immunities or deny any person the equal protection of law. However, over time, precedent has evolved and national origin, religion, and race have become these defined protected classes under the Equal Protection Clause, but the court has not yet decided whether laws that discriminate based on gender identity and sexual orientation are subject to heightened scrutiny. So in the court's 2020 decision in Bostock, the majority said that discriminating against an employee based on which gender they associate with is discrimination based on sex

and therefore is unlawful under the Civil Rights Act. However, this ruling doesn't automatically extend to the Equal Protection Clause, meaning just because discriminating against sexual orientation or gender identity in the employment setting is unlawful doesn't automatically mean that gender identity and sexual orientation are protected classes under the Equal Protection Clause and therefore subject to heightened scrutiny. So all of this to say that when the justices do hear this case next term, sometime in the fall, it's going to come down to whether they apply heightened scrutiny to this kind of law. Because if they do, Tennessee's chances of success are low. But if they don't, Tennessee has a high chance of success.

But the first question the court has to answer is whether the law even discriminates on the basis of sex, because that that will answering that question will will guide them in what level of scrutiny to apply. I will say this, though, we do have an idea as to where at least two of the justices stand on this issue because of the 2020 Bostock decision. Justices Alito and Thomas dissented from the majority in Bostock because they disagreed that sexual orientation and gender identity fall within the classification of sex, which entitled them to heightened scrutiny under the Civil Rights Act. So we can imagine that when this does go before the justices, even if the justices determine that the law does discriminate on the basis of sex, Justice Alito and Justice Thomas are going to say that only

rational basis review applies here because they don't agree that gender identity and sexual orientation fall within the classification of sex. And what that means is that those two justices are likely to uphold Tennessee's law because the bar is so low when it comes to rational basis. But when oral arguments do eventually take place, I'll go into much more detail as to the arguments on both sides, which way the justices seem to be leaning on the issue. I just kind of wanted to give you a preview into what the law says and what the actual issue is before the court and what prior precedent tells us about this issue. Before we finish the episode with quick hitters, I do briefly want to address this rumor, so to speak, about women having to enlist in the military and men having to automatically register. Not sure if you've heard it, but basically I've heard from enough of you,

so I'd imagine a lot of people have. Basically, there's this storyline that the National Defense Authorization Act is going to require women to register with the Selective Service and require men to be automatically registered if between the ages of 18 and 26. So here's the deal. The National Defense Authorization Act is passed by Congress every year. Its purpose is to provide policy to the Department of Defense and guide the military and national security funding for the next fiscal year. And how it works is the House and Senate come up with their own versions of the bill separately. Each chamber has to approve and pass their own version. So a Senate committee comes up with one proposal, it then has to pass the Senate floor. A House committee comes up with another version, it has to then pass the House floor. Then once they've

each passed their own version, they get together and come up with one single version that they can both agree on. And we know that that's difficult. And that is what is ultimately passed and sent to the president's desk for signature. So just recently, the House passed its own version of the bill. In the House's version, there's a provision that would automatically register eligible men between the ages of 18 and 26 in the Selective Service System, which is the database of registrants in the event of a military draft. Now, according to the Congressional Research Service, 41 states in Washington, D.C. already have legislation that automatically submits selective service registration when men who are legal permanent residents of the United States get their driver's

license permit or other form of ID. So this isn't necessarily a new idea. Currently, under the Military Selective Service Act, which is the federal law that, you know, determines all of these things, most men are required to register at the age of 18. But what the House's version of the bill would do is amend that act to automatically register eligible men without those men having to take any action. However, and this is the most important point to make, this provision is not included in the Senate's version of the bill. So it's a long shot for this provision to make it into the final bill. Similarly, the Senate's proposed version of the bill would amend the Military Selective Service Act to require women to register. Note though, again, this provision is not in the House's proposed bill, and the Senate has yet to pass their bill even on the floor. So again, long shot that it even makes it into the final version.

I do want to also mention that this proposal specifically, women having to register, it's been submitted multiple times. In fact, every year since 2021. I mean, that's only a few years, but it's been proposed every year since 2021. It's never made it into the final version. So that's what you need to know about the National Defense Authorization Act proposals. And I really hope that that cleared up any confusion. Let's finish this episode with some quick hitters. The FBI released its annual active shooter incidents report today, which shows incidents were down 4% in 2023 compared to 2022, but were up 60% when compared to 2019. So here are the numbers for the last five years. 2019, 30 active shooter incidents, 2020,

40 incidents, 2021, 61 incidents, 2022, 50 incidents, and 2023, 48 incidents. This report is done every year as a result of the Investigative Assistance for Violent Crimes Act of 2012, which led the FBI to look into active shooter incidents since 2000 and every year going forward. According to a new Customs and Border Protections report, officials encountered 170,000 people in total in the month of May, 117,000 of which were between lawful ports of entry. May was the lowest month of the 2024 fiscal year, which began October 1st and ends September 30th. The highest month of the fiscal year so far was December 2023, in which officials encountered 301,000 people.

Despite the decrease in numbers in the month of May, though, the encounters are on track to pass 2 million for the third year in a row. In some other news, Kremlin spokesperson Dmitry Peskov seemed to warn the United States of consequences following a Ukrainian missile strike on Crimea using U.S.-made rockets. Peskov said, quote, of course, the involvement of the United States of America in hostilities, direct involvement in hostilities that result in the death of Russian civilians, this, of course, cannot but have consequences. What exactly? Time will tell. End quote. This isn't the first time the Kremlin has issued a warning to the United States for providing Ukraine with weapons and assistance though. That is what I have for you today. Thank you so much for being

here. Have a great night. Stay tuned for Wednesday when the hats drop. You are not going to want to miss it. I will be back with you tomorrow for another daily news rundown.