0:00

I'm Shelby, and I'm

0:02

from Reynoldsburg, Ohio. So what was broken

0:04

on my car was really unique and they

0:06

did a wonderful job at tracking it down

0:08

and had it there the next day and fixed.

0:10

Three seat out with my insurance, so I just got

0:12

to sit back and they took care of everything. I

0:14

had my car back within then somebody

0:16

else hit it. And now I find myself back

0:18

at 3C body shop. I would recommend 3C

0:21

to family friends and anybody who been

0:23

a next.

0:23

Three c pie shop. The

0:26

carnistic colors should be there.

0:33

I broke a mirror in my house and it's supposed to

0:35

get seven years

0:35

bad luck by my think so you can get

0:38

me far.

0:48

Oh, look at me. I'm a lawyer. I'm

0:50

so good at working. We're using a dude,

0:53

and yes, but that wasn't worth.

0:55

Right? your

0:58

honor, miss Russell, has failed to legal, legal,

1:00

legal, and she is legally legal. He

1:02

asked the court to legal legal legal legal legal

1:04

legal. Don't

1:07

worry, there's nothing illegal about any of this.

1:09

Are you sure? Of course. us. This is

1:11

America. It's a free country. Don't

1:13

you know that? I didn't know it was that free.

1:16

So do

1:17

you think you've talked about the trial without

1:19

talking about what happened after first.

1:21

yeah

1:25

Welcome

1:25

to opening arguments. a podcast

1:27

that pairs a comedian with a real life lawyer.

1:30

This podcast is sponsored by the law offices

1:32

of P. Andrew Torres, LLC for entertainment

1:34

purposes, is not intended as legal

1:36

if ice and does not form an attorney client

1:38

relationship. Don't take legal

1:40

advice from a podcast.

1:48

Hello,

1:48

and welcome to opening arguments. This is episode

1:51

six hundred and forty nine. I'm Thomas. That's

1:53

Andrew Torres. How are you doing, sir?

1:55

I'm fantastic, Thomas. How are you?

1:57

I'm

1:57

very fantastic, Andrew. You could say

1:59

that I'm roughly

1:59

twice as fantastic as

2:02

is the normal amount of opening arguments. Really

2:05

Now that's a very specific number. Now

2:07

why would you be twice as

2:09

fantastic as you I know. I know.

2:11

It's because I'm less echoey. Yeah.

2:14

It is actually that end of announcement. Oh,

2:18

look. I appreciate everybody chiming in.

2:20

You don't need to tell me that sounds equity like

2:22

that. This is a hundred percent on my fault.

2:24

People What I am doing for

2:27

you is I had an

2:29

area behind my garage converted

2:31

into a studio. It's been a long time.

2:33

It's gonna be soundproofed. Literally,

2:36

the only thing that's left is put up the stuff

2:38

from the walls that protects the geckos, but

2:40

contractors. And so I

2:42

recorded the last episode last

2:45

two episodes plus cleanup

2:47

in what is apparently an echo

2:49

chamber. I apologize. Please

2:51

stop emailing Thomas. This is my fault.

2:53

Thomas did everything on Earth

2:56

possible to make it sound like I was not

2:58

yielding into the Grand

3:00

Canyon. It's it's it's gonna be

3:02

better. I promise. I

3:04

sicked my expensive software

3:06

on it for the d reverb, and it's like, oh, I

3:08

can't do it, kept it. It just was -- Yes. --

3:10

smoke was coming out of it. It's not a bad scotty.

3:14

Yeah. No. That's okay. That's not the announcement. I

3:16

appreciate it. It's just I have ears.

3:18

Like, it's not If ever you hear something

3:21

like that, it's not because I haven't heard

3:23

that it's a problem. It's because there's no way

3:25

to fix it and we're stuck with it. That's just in general.

3:27

If ever you hear something in the audio,

3:29

just assume that it's fault.

3:31

But no more exciting things, Andrew. More exciting

3:34

announcements. I cannot even believe it.

3:36

So here's the thing. I don't even remember

3:38

when we set this goal or why we set this

3:40

goal or if it was just a goof, Andrew,

3:43

or just a prank or a fun joke,

3:45

but way back when we set up

3:47

the Patreon for this show. Hillary was about

3:49

to be elected president. We had

3:51

a handlebar moustaches and mutton

3:53

chops. I was, you know, bell

3:56

bottoms, you know, at bell bottoms and

3:58

mutton chops. see that. That's

3:59

the look I was rocking. I was going handlebar

4:02

mustaches and bell bottoms, but, you know, either way,

4:04

we're mixing it up. So we set

4:06

a goal of like daily o a.

4:08

just for like and I think that was

4:10

a practical joke. I don't even know if it was

4:12

achievable anything we meant. But here's

4:14

the thing. We're actually kinda almost to that

4:17

goal. we got a notification that

4:19

was like, you're seventy five percent of the weight to your

4:21

daily o eight or something like that. And I

4:23

was like, that's news to me. What are you

4:25

talking about? Computer? It's actually

4:27

true. And here's the thing. We could

4:29

also just ignore it and not do it and pretend it

4:31

never happened. That's one solution. That's a

4:33

good one. We We have long

4:35

wanted to find a way to produce that

4:38

kind of thing, but the problem is the way

4:40

we, you know, make a living on this

4:42

show is through Patreon, is through people

4:44

paying per episode. That's the way that's

4:47

always been the kind of the the financial

4:49

model of the show. And there was no

4:51

way we already are a twice a week show. There's

4:53

no way. We were going to, like, hit

4:55

up our patrons, you know,

4:57

three more times. No. It's never That is

4:59

never gonna happen. So it all we we're trying to find a

5:01

way to make the model work it, but it always was, like,

5:03

well, we could do an insane amount of

5:05

work and make no

5:07

more money. It's like, Andrew's

5:09

already just smokes coming out of his ears trying to

5:11

get everything done in the week anyway. But

5:14

because of the new way that ads

5:16

seem to be working, the ad industry for podcasts

5:18

is going a different way. You may have noticed. If you're a

5:20

patron by the way, you don't know any of this, and that's great.

5:22

at patreon dot com slash law if you would

5:24

like to continue to know nothing

5:26

about how ads work for podcasts. But

5:28

they're going with a new kind of dynamic ad

5:31

thing, so you may have heard more of those ads that

5:33

just come in that aren't us reading. And

5:35

that seems to be the way that it's going.

5:37

And we realized the other day, we're talking

5:39

about Andrew and I realized that that actually unlocks

5:41

an opportunity to find a way

5:43

to make the economic model for

5:45

a more frequent o a,

5:47

make sense, And so, I

5:49

think we're gonna make it happen, Andrew. I

5:51

think that's right. So here's what's gonna happen. You

5:53

hate advertisements, Adrian, at

5:55

any level, you'll never hear it at ever.

5:58

period. patreon dot com slash

5:59

love, give us a buck. If you're an existing

6:02

patron, nothing will change.

6:04

Nothing will change. Well, if you will get a

6:06

lot more stuff, nothing money was But nothing

6:08

will change in terms of how you

6:10

were billed. You will be billed for

6:12

mainstream episodes exactly

6:15

as much as it was before. And

6:17

if you're a listener either way,

6:19

you're gonna get the Friday rapid

6:22

response Friday, you're gonna get Tuesday

6:24

deep dives, those episodes aren't

6:26

gonna change. What we're gonna do is we're

6:28

gonna bring episodes on on Mondays

6:30

and Thursdays. you will get o a

6:32

in your ear holes, Monday,

6:34

Tuesday, Thursday, Friday.

6:37

I'm very, very excited to bring

6:39

that to you. We're still working on

6:41

how to align the segments, but

6:43

this is gonna enable us to bring because

6:46

there are just so many stories that I

6:48

research that I tell you And if you're

6:50

a patron at the three dollar and up level, you

6:52

get my handwritten hand

6:54

typed notes so you know that,

6:56

like, I've done five pages of research

6:58

in the store. It

7:00

never airs, like a hundred people get

7:02

to read it. But,

7:04

you know, the show never airs. I've

7:06

done all the work. I cannot tell you

7:08

folks listening. how

7:09

many times I feel so bad because I have

7:11

to be the bad guy. Andrew is prepared

7:13

so much and will be at like, you

7:15

know, ninety minutes and I'm over there thinking

7:17

I have to turn this around did,

7:19

like, four hours. Yeah. Four hours. Like,

7:21

yeah, I've some have to turn this around Sunday,

7:23

and I just have to be like, Andrew, I know you have

7:25

a masterpiece you know, like you've

7:27

painted just an absolute assisting

7:30

chapel of notes. It's amazing, but

7:32

I have to be like, Andrew, please stop talking and

7:34

I hate it. I hate having to do that

7:36

because it would be great to give you so much more. This is gonna

7:38

allow us to do that. We're also gonna move stuff around

7:40

in a way I think will make much more sense It's

7:42

gonna be really cool. We'll give you the details or,

7:44

you know, we might just launch it and you'll hear the

7:46

details, but it's gonna be a slightly different format.

7:48

But the important things that Andrew already said

7:50

nothing's going to change for patrons,

7:52

billing wise, except you're getting way more stuff.

7:54

And it's going to allow us actually to do more

7:57

on the main episodes. because

7:59

we're gonna shift a few things to the

8:01

shorter, quicker episodes that we're

8:03

adding. I'm really excited. It's gonna

8:05

be so cool. We figured, let's not

8:07

launch this on Thanksgiving Week next week

8:09

because I think people will be gone and won't even listen.

8:11

So we're going to launch it the week

8:13

after that. Expect the new format.

8:16

I'm so excited. Me too. I'm also

8:18

excited because we haven't we we also still have

8:20

a way to do, Andrew. Alright. Well,

8:22

let's do Double triple the excitement

8:24

Let's get to it. Why are you laughing? This

8:27

is terrible news.

8:29

What I I You you

8:31

told me, I I was just just trying to soften

8:33

the blow. I So election

8:36

didn't go quite as positive as

8:38

maybe it was looking like for a minute.

8:40

What's our final kind of mid term

8:42

update here? Republicans have

8:44

officially captured

8:46

two eighteen seats in the house for the next

8:48

session. We told you all along that was

8:50

the most likely outcome. And

8:53

here are the status of uncalled

8:55

races. So Republicans control two

8:57

hundred eighteen seats. That's a bare majority

8:59

in the House. Democrats control two

9:01

hundred and thirteen. Those four

9:03

uncalled races that are still out

9:05

there, all lean Republican.

9:07

If there's no change, that

9:09

would be a nine seat majority two twenty

9:11

one to two thirteen. I think

9:13

probably most likely is gonna be at

9:15

least one of them flips which

9:17

would be two twenty one to two fourteen,

9:19

which would be a seven seat lead,

9:21

one more flips and it's the five seat

9:23

lead. So, you know, each one counts double. Yeah.

9:26

No kidding. Here are those four uncalled

9:28

races. California's thirteenth

9:30

district. Adam Gray trails John

9:32

DeWorte by less than a thousand

9:34

votes. with ninety one percent

9:36

in. So there's no way to tell on

9:38

that. Slightly blue district

9:40

looks like gray could come from behind.

9:42

Colorado three, that's the Lauren Beaubert

9:44

race. California does not have an

9:46

automatic recount provision. Oh, really?

9:48

Wow. Yeah. Candidates have to pay if they

9:50

wanna recount. If Gray loses by

9:52

less than a thousand votes, his candidacy

9:54

may pay for the recount. That may

9:56

be worth it. In Colorado, if you're

9:59

within half a percent, it triggers

10:01

The state pays for an automatic

10:03

recount. The Beaufort race is headed for that

10:05

automatic recount. She leads by one

10:07

thousand one hundred and three

10:09

votes. We just will not know that

10:11

until December. Recounts

10:13

typically don't change a thousand, but they can

10:15

change a couple of hundred. Plus the ballot

10:17

caring, as I've said, all

10:19

of that. And let me just add one more parenthetical.

10:22

Demonstrating Beaubert's weakness

10:25

is really, really

10:27

significant even if she

10:29

narrowly scrapes by to a victory here.

10:31

She's gotta run again in two years.

10:33

That's gonna bring challengers

10:35

out in the Republican primary who are

10:38

like, hey, I'm not a goddamn

10:40

lunatic, and maybe I won't

10:42

risk losing the seat. so

10:44

optimistic. It could be, hey, this person's

10:46

not lunatic enough. I'm

10:48

even crazier. It could

10:50

be, but unlike Marjorie Taylor

10:52

Greens Dist which is, you know, Republican

10:54

plus thirty. You can be not just as

10:56

stupid as you wanna be, but like

10:58

the dumber you are, the better

11:00

that is with your primary electorate.

11:03

here, Republicans are pretty

11:05

strategic and being able to

11:07

say, this candidate is so

11:09

bad that even in this Republican district,

11:11

she almost lost vote for

11:13

me is a real thing that

11:15

will happen. There will be because there

11:17

are lots of young

11:19

up and coming politicians in

11:21

Colorado that are looking for

11:23

an opportunity. That's a really, really good

11:25

opportunity. And I imagine Adam Frisch

11:27

and other Democrats will run again

11:29

particularly if BOBERT

11:31

survives out of the primary and will say,

11:33

hey, this is an even better

11:35

opportunity to knock off. Lauren

11:37

BOBERT, Adam Freshnow has

11:39

really good name recognition in the district.

11:41

He's run a competent campaign and

11:43

is gonna get way more funding

11:45

from the d triple c. and

11:47

outside groups the next time around. This is the

11:49

model that led to Michelle Bachman

11:51

retiring from Congress. She

11:53

went on MSNBC and said

11:55

some on speakably stupid. No. It's

11:57

hard to think of which thing it was. Right.

11:59

Speaking of witches. It wasn't there some witchcraft

12:02

in the Yeah. That was Christine

12:05

O'Donnell in Delaware, though. I'm not a

12:07

witch. Oh, okay. It was great. I blended

12:09

my wackos. That's fair. There's a lot

12:11

out there. Yeah. What passed for

12:13

disqualifying ten years ago, no

12:15

longer and again, that

12:16

produced a million dollar

12:18

surge in donation for her opponent

12:20

right at the finish line, which he was

12:23

unable to translate into a

12:25

victory, but it led to exactly

12:27

kind of the cascade of events that I've described.

12:29

So even if we don't pick up over this

12:31

time around, it's a good unraveling.

12:33

So those are two seats. Then there

12:35

are two more and these have been

12:37

long shots all along. These are two

12:39

more California Congressional districts

12:41

the third in which Kermit Jones,

12:43

trails his Republican appointed by nine thousand

12:46

votes. That's four and a half percent

12:48

with sixty percent in.

12:50

So who knows? And then California

12:52

twenty two in which the Democrat Rudy

12:54

Salas trails David Valdau

12:56

by four thousand votes, but because of

12:59

lower turnout, that's five and a half

13:01

percent with two thirds of the vote in. Is

13:03

there enough time to make up this what there

13:05

is? these races have been tightening

13:07

in favor of the Democrat all along.

13:09

You still probably bet on the

13:11

Republican outcome, but those are

13:13

the last races it's gonna be a slim

13:15

Republican majority in the

13:17

house no matter what. I was gonna say,

13:19

what do you think is the best case

13:21

now? for

13:21

Democrats. I mean, there's no longer

13:24

than any chance of a majority.

13:26

Right? I mean, it's even That's right under the most

13:28

optimistic. But, like, it's

13:29

either 13579

13:32

you know, like, how low do you think is

13:35

realistically possible for that majority?

13:37

Realistically, I

13:39

think if they were to swing

13:41

two of those four seats -- Mhmm. --

13:43

that would be at the kind of the

13:45

far end of plausible. Yeah. That

13:47

would be two twenty to two fifteen.

13:49

Five still five. That's

13:51

a bad thing. I was hoping it would be like

13:54

one or three. one or three would

13:56

be great. Yeah. Five is I

13:58

mean, it's And the reason that the one or three

13:59

makes a difference is because as we've

14:02

mentioned, if somebody is

14:04

indicted or dies or

14:06

whatever, say, for sex trafficking

14:08

or That seat goes to a special

14:10

election. That's exactly right. You do not unlike

14:12

the you can't appoint an

14:14

interim member of Congress. And so

14:17

switching a d for an r is

14:19

a minus one on one end plus one on the

14:21

other end -- Yeah. -- is a two foot switch but

14:23

when somebody just dies, then

14:25

all of a sudden that creates a one

14:27

vote gap. So I we

14:29

all would have liked to kind of draw to the inside

14:31

straight. It didn't happen. Hopefully, you

14:33

weren't too invested in that. Oh,

14:35

shoot. I don't know. I still feel like maybe the

14:37

the bover one. I mean, who knows? With the with

14:39

the efforts going on? I mean Yeah. Who

14:41

knows? There's still a chance with the ballot curing and

14:43

the and the recount. Right? there

14:45

is still a chance. You know, it's I'm

14:47

more optimistic on that one. Well, no, I'm not

14:49

really optimistic. I just like to have

14:51

something to hope for. Yeah. got

14:53

it. But there you go. That'll be our

14:55

last politics update. I apologize

14:57

to our international listeners

14:59

now. You get to hear some more about American law.

15:01

international. listeners are more into these elections than

15:03

we That is very, very true. Anytime we

15:05

travel abroad, they are more informed

15:08

than I am. It is crazy

15:10

just as a general rule, like

15:13

ask yourself how much you know

15:15

about the constitution of Italy

15:17

and then I promise you every

15:19

single one of our Italian listeners

15:21

knows more about the US constitution. I

15:23

know they have their own fascism going. Their

15:25

resurgence of fascism going. I know

15:27

that much. So Yeah. Yeah. I'm

15:30

sure we'll talk about it. Alright. Well,

15:32

little this morning, but thanks for the update,

15:34

Andrew. And we'll continue to hope for that

15:36

smaller and smaller majority

15:37

maybe. Yep.

15:41

This episode's brought to you by the Jordan

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17:22

Alright,

17:26

Andrew. The you may have seen

17:28

the viral headlines that

17:31

Mitch McConnell despite being in an interracial marriage

17:33

voted against codifying inter the

17:35

right to interracial marriage, which

17:39

hell of a way to to ask for a divorce.

17:41

You know? Like, maybe it's a it's a way to avoid

17:43

asking for a divorce. Oh, sorry.

17:45

Just can't we can't legally do it anymore.

17:47

No. But despite McConnell's best efforts at

17:49

a weird way to

17:51

to force his wife. This past,

17:53

the respect for mayor Jack, passed

17:55

in the senate And I'm sure it was a hundred nothing. Right? Because it's well,

17:58

no. Okay. Mitch McConnell must have been ninety nine to

17:59

one because it's about

18:02

codifying rights that everybody would

18:04

assume we should definitely have. Right? So 991

18:07

Did sixty two to thirty seven. So

18:09

yeah. Thirty seven. Yep.

18:12

That is what, eighty five percent of the

18:14

Republican Party is still against it. It

18:16

has also been it has

18:19

weirdly drawn some

18:21

ire from some progressive. So --

18:23

Mhmm. -- and it gets worth talking about this.

18:25

This is a great bill.

18:27

It has I'm gonna talk about the four

18:29

things I wish it didn't have in it.

18:31

But those four things, let me be

18:33

absolutely clear here, are not a are certainly not

18:35

a reason to oppose the bill.

18:37

they're not really even a reason to dampen

18:39

your enthusiasm much. And I wanna talk

18:41

about it. And I think maybe that's

18:44

come about because some

18:46

outlets have characterized this

18:48

because, you know, you wanna simplify

18:50

your messaging. Right? One of the items at the

18:52

top of the Democratic agenda is

18:55

caughtifying row into the wall. Yeah. And so

18:57

this has been characterized as codifying

18:59

a burger fell, and it does not

19:01

do that. That's not an accurate description

19:03

of what this does.

19:06

So let me explain what the bill does.

19:08

Again, sixty two to thirty

19:10

seven, twelve Republicans

19:12

voting in favor of it along with

19:14

every single Democrat. Wow.

19:16

It's almost like voting in Democrats. Almost

19:18

as if there's a difference between the parties.

19:20

Yeah. This was co sponsored by

19:23

Kirsten Cinema. You're not going to get

19:25

me to say anything good

19:27

about that fact. I don't care. Fair

19:29

enough. Spearheaded by Tammy Baldwin, a

19:32

genuine progressive, and

19:34

pulled in a bipartisan vote

19:36

here's what you need to know in order

19:38

to understand this

19:41

context. And obviously,

19:44

this being enacted in full

19:46

view of an activist raging

19:49

right wing Supreme Court. So

19:51

let's turn the

19:53

clock back to nineteen ninety

19:55

six. Mhmm. Nineteen ninety six

19:57

was the aftermath of

19:59

the bloody midterms

20:01

for president Clinton that were avoided

20:03

here in which Democrats lost both

20:05

the House and the Senate. They

20:07

lost, you know, sixty plus seats in

20:09

the House. They lost eight Senate seats

20:12

It completely derailed the

20:15

progressive agenda and

20:17

any chance for universal

20:19

health care and caused

20:21

Clinton to rapidly

20:23

swing to the right in an

20:25

effort to secure reelection. Sorry. I couldn't

20:27

hear it. Could you say all that again? I was getting my

20:29

disc man to work with my as popped

20:31

in a Sublime CD. Oh,

20:33

God. It was also, yeah, the era of the

20:35

worst music ever made. Fuck that

20:37

up. That

20:39

would work coming from anyone, but you who

20:41

was saying that's been ten years prior to that was

20:43

the best music of all time according to you.

20:46

Yes. No. That's not

20:48

true. States like, in

20:50

nineteen ninety six, twenty five years

20:52

ago, pre Ali McBeal, but

20:55

still fairly. At a time

20:57

period that is in for a lot of us

20:59

recent memory, there were there

21:01

were zero states in nineteen

21:03

ninety six that had

21:05

marriage equality that recognized

21:07

same sex marriage. There were

21:09

a handful of states like Hawaii and

21:11

Vermont that allowed for civil unions. I

21:14

remember that was the kind of the debate back then.

21:16

And that was the track that

21:18

people thought we were sort of going

21:20

down. And in

21:23

anticipation of that anticipatory bigotry

21:26

kicked in with a bill called

21:28

the defensive merit, which it

21:30

was indefensible at the time

21:32

and is indefensible now. And

21:34

Doma did two things. So section

21:36

three of the defense of marriage act was codified

21:38

at one USC seven

21:40

of the United States code and

21:43

made a federal definition of marriage

21:45

and spouse. And it says, in

21:47

determining the meaning of any act of congress or of

21:49

any ruling regulation or

21:52

interpretation of the various administrative

21:54

bureaus and agencies in the United States, the

21:56

word marriage means only a legal

21:58

union between one man and one woman as

22:00

husband and wife and the word spouse refers

22:03

only to a person of the opposite sex who was

22:05

a husband or a wife. Yeah. Yeah.

22:07

Codified into law, that

22:09

was overturned by the supreme

22:11

court in a five for decision

22:14

authored by justice Anthony Kennedy who

22:16

was again mainstream

22:18

conservative back then, but sensitive

22:20

to civil rights issues, particularly

22:23

on sexual orientation and

22:25

related issues. And so Anthony Kennedy,

22:27

five four joining with the

22:29

then four Liberals on the court.

22:31

In twenty thirteen, that decision was

22:33

called US versus Windsor. It

22:35

struck down that definition of marriage

22:37

as unconstitutional. But

22:39

There's a second provision

22:41

of the defensive merit act, which has

22:43

never been challenged at the Supreme Court.

22:45

I didn't remember that. So what's the

22:47

distinction between that doma being

22:49

struck down, but gay marriage not

22:52

being same sex marriage not being

22:54

kinda made okay everywhere. So

22:56

Doma said as a matter of

22:58

federal law, we will not

23:00

recognize any state that

23:02

recognizes a

23:04

same sex marriage. but did

23:06

not require all fifty states could

23:08

still -- Gotcha. -- this was no longer the

23:10

case in twenty thirteen by the time the Windsor

23:12

case came up. It was free at the state level to decide

23:14

are you going to have it or not? Mhmm.

23:17

Remaining and still good law

23:19

today put -- Yeah. -- scare quotes around

23:21

that is DOMAS section

23:23

two, which allows states to

23:26

refuse to recognize same sex

23:28

marriages performed under the laws

23:30

of other states. Now that

23:32

has been superseded by the Obergefell

23:34

decision because now there

23:36

are no states that can refuse

23:38

to recognize same sex marriage. But

23:40

that sort of hypothetical question

23:42

of suppose Alabama

23:45

defines marriage differently than

23:47

Maryland do the states have to recognize

23:49

-- Yeah. -- those marriage? Is it like a

23:51

basic constitution y thingy? It's called the

23:53

full faith and credit clause. And

23:56

if it were to remain on the books

23:58

and remain

23:59

challenged, it would be an interesting

24:02

constitutional question, but you know where that

24:04

would go with this right wing activist supreme court.

24:06

I just mean, like, if we still had, you

24:08

know, real supreme court. Is that

24:10

something that, like, in your

24:12

opinion,

24:12

should be an easy, like, knock down

24:15

case of, yeah, obviously, the constitution

24:17

guarantees that you're gonna respect the marriages of

24:19

another state or is it more complicated

24:21

than that? The reason it becomes more complicated is

24:23

because you have to imagine a

24:26

constitutional regime in

24:28

which There is no

24:30

right under the fourteenth amendment

24:33

fundamental personal right to marry

24:35

whomever you want. But

24:37

there is still sort of this question of,

24:40

okay, well, how do we make sense of the

24:42

patchwork of how states handle it?

24:44

That's what would add the the question to

24:46

it because There's a very obvious

24:48

like, the reason that Oberto fellas correctly

24:50

decided is when you say,

24:52

a state conveys a

24:54

set of privileges that says,

24:57

Andrew, we will authorize

24:59

you to have certain

25:01

tax benefits, certain visitation rights, and

25:03

all of the other packages that go along

25:06

with marriage so long as you're married to a

25:08

woman. But if we were to

25:10

take a woman, we would deny the

25:12

right for her to do the exact same

25:14

thing. And that's as obvious a

25:16

discrimination on the basis of sex for no

25:18

reason as you could possibly get.

25:20

So I can't imagine how

25:23

any fair minded jurist no matter how

25:25

conservative could overturn a Bergefel. And

25:27

then the key adjective there is, of course,

25:29

fair minded. Yeah. So that

25:32

section. Section two of

25:34

Doma is twenty eight USC seventeen

25:36

eighty three c, and it says

25:38

the following. No state

25:40

territory or possession of the United States or

25:42

Indian tribe shall be required to

25:44

give effect to any

25:46

public act record or judicial proceeding of any other state,

25:48

territory, possession, or tribe,

25:50

respecting your relationship between persons

25:52

of the same sex that

25:54

is treated as a marriage under the laws of

25:56

such other state territory possession or

25:58

tribe or a right or claim

26:00

arising from such relationship. That

26:01

is still a law on the

26:04

books right now has never been

26:06

challenged because of Bert Schaefeld

26:08

superseded that. Right. challenged state

26:10

definitions of merit. Sort of like those

26:12

abortion laws where it's like it could spring

26:14

back into effect. Yeah. Yeah. Once Roe

26:16

has tricked down, then it's like, oh, there's just think

26:18

from eighteen ninety that all of a sudden is in effect. Yeah.

26:20

And this is nineteen ninety

26:21

six. So it's less preposterous

26:24

to think of it as springing into effect. That is exactly

26:27

right. So here's what

26:29

the just past h

26:31

r eighty 404

26:33

does. Number one, it repeats

26:36

that section. So even if that's all you

26:38

did, this would be good legislation. Yeah.

26:40

Number two, it replaces it with

26:42

two provisions, each with a couple couple of

26:44

sub points. It says, A, no person

26:47

acting under color of state law

26:49

may deny one, full faith

26:51

and credit to any public act record or

26:53

judicial proceeding of any other

26:55

state pertaining to a marriage between two individuals on the basis

26:57

of their sex race, ethnicity,

26:59

or national origin of those individuals.

27:01

Again, recognizing that loving

27:04

v Virginia could be at risk in

27:06

the supreme court. Or two, a

27:08

writer claim arising from such a marriage on

27:10

the basis that such marriage would not

27:13

be recognized under the law of that state. So in other

27:15

words, if you get married in

27:17

Maryland and you are traveling

27:20

to Alabama, Alabama

27:22

has to recognize that marriage.

27:24

They cannot say, no.

27:26

That's not a legal marriage in Alabama, so

27:28

we don't care. And so if you get in a

27:30

car accident, the hospital in

27:33

Alabama must afford

27:35

your spouse all of

27:37

the rights that tend to

27:40

a spouse in the state of Alabama

27:43

regardless of how big it is Alabama

27:45

is. And I'm sorry, I'm picking on Alabama.

27:47

Nah. That's justified. Notice

27:49

by the way that what they've replaced it

27:51

with is much more expansive and more bullet

27:53

proof than the original seventeen eighty

27:55

three in reverse. So it applies

27:58

to any person acting under color of

27:59

state law. Mhmm. So that means

28:02

state officials, that means police

28:04

officers, that means university staff.

28:06

Right? Like, if you are acting

28:08

under color of state law, you must respect

28:11

marriage from other states even if

28:13

your state restricts it. That's

28:15

an unambiguously good. Yeah. The

28:18

third thing, it recognizes a private

28:20

right of action. It says any person

28:22

harmed any violation of that new

28:24

Section seventeen thirty 8CA

28:27

may bring a federal action in

28:29

federal court for declaratory and

28:31

injunctive relief. So somebody

28:33

won't let you in to see, you

28:35

know, you're married in Maryland traveling through

28:38

Alabama, and the state official will not

28:40

allow you into the House spittle to visit your

28:42

wife, you can run

28:44

into court and say, hey, the fact that

28:46

I'm a woman doesn't matter

28:49

under federal law, I want an

28:51

injunction that says, let me in to

28:53

see my sick wife. That's a great

28:55

provision. And then number four, provides

28:57

for a new definition of

28:59

marriage in one USC seven, and it says, for purposes of

29:01

any federal law rule of regulation in

29:03

which marital status is a factor, an

29:05

individual shall be considered married if that

29:07

individual's marriage has been between

29:09

two individuals and is valid in the state

29:11

where the marriage was entered into

29:13

or in the case of a marriage entered into

29:15

outside of any state, if the

29:17

marriage is between individuals and is valid in the

29:19

place where entered into and the marriage

29:21

could have been entered into in a

29:23

state. So It says we

29:25

are making clear that for federal

29:27

purposes, we're going to use the most

29:29

expansive definition of marriage

29:31

possible between two

29:33

individuals. That then leads to

29:35

the four things that are in the bill, that I

29:37

wish we're not in the bill. And

29:39

let me start with the most

29:41

obvious. And again, we've answered

29:43

this question on q and a's.

29:45

It explicitly says there is no

29:48

recognition of polyamorous marriages,

29:50

which it polyamous marriages.

29:52

I'm sorry about that. That strikes me that

29:54

there will be a time in the future,

29:56

maybe even in the relatively near

29:58

future in which we look back,

30:00

and that seems as bigoted as some

30:02

of the provisions that were in, you know, the

30:04

defensive marriage actor, don't ask, don't tell her,

30:06

whatever. I want to tell you that

30:08

there is no this

30:10

issue is not teed up in state or

30:13

federal courts. It is not teed

30:15

up among the political

30:17

parties and expanding

30:20

a contract from a

30:22

bilateral arrangement to a

30:24

multiparty arrangement will

30:26

add complexities that, you know, are just

30:28

not present. And so this does

30:30

not Let me be very, very clear. I think

30:32

the law to recognize polyamorous

30:35

marriages. I don't think there's any

30:38

defensible reason. Yeah. Mainly under the legal

30:40

reasoning of who gives a shit.

30:42

gives us shit. Yeah. Exactly right. There is no

30:44

valid reason not to.

30:46

But that being said, I do

30:48

not believe that this materially sets

30:50

back that cause. Right? I would say I'm

30:53

very very sorry that the state

30:55

of recognition

30:58

for polyam risk

31:00

relationships is probably not well

31:02

developed right now, and this

31:04

probably feels like a punch. And this was

31:06

added by the way by Republican amendments. Right.

31:08

This is Republicans wanna use you

31:10

as a punching bag. You know that already. And

31:12

I'm sorry that they use that to

31:14

get in a shot here, but that's not

31:16

a reason not to move forward on

31:18

this. The rest of it, the other

31:20

three are exactly what you would

31:22

think. There's a specific section again added

31:24

by Republicans that says We

31:26

will interpret this consistent with

31:28

the constitution, and then it includes the

31:30

words and federal law. And

31:32

that means Riffra Why does

31:34

RIFRA still exist? Can't we get rid

31:36

of that? We certainly should, but

31:39

it's never gonna happen. So, yeah, this is gonna

31:41

tee up some Kim Davis asshole

31:44

who says I have a masterpiece

31:46

cake shop kinda argument. I

31:48

don't wanna issue a marriage license

31:51

to We're gonna have to fight that battle. I wish we didn't have to

31:53

fight that battle, but I would

31:55

rather build in

31:57

these protections and at

31:59

least kind

31:59

of fight that battle on

32:02

those grounds. Maybe what this will do

32:04

is drive home for

32:06

Democrats that just building in religious

32:08

exemptions is not a thing you can do

32:10

anymore. I know you said it's never gonna

32:12

happen. Why not? Are we not to the point where

32:14

Democrats can run on like, hey, let's get rid

32:16

of this piece of not good.

32:18

Who believes this is a good thing?

32:20

Everybody? I'd love to be there. Let's

32:22

take a look. But but right now,

32:25

I think we're probably about. And then two

32:27

other

32:27

sops to religious institutions,

32:29

one that says no nonprofit

32:31

religious entity will be required

32:34

to provide services, accommodations, facilities

32:36

or goods for the solemnization

32:39

or celebration of a marriage. There's

32:41

nothing in the act that would interpret that

32:43

as saying, hey, your church has to

32:45

gay married people now. And that would

32:47

I I wouldn't be in favor of that. And by the way,

32:49

if you're getting married, maybe

32:51

don't get married at a church. Yeah. -- you

32:53

know, I will never understand. Look, I I get

32:55

it. I mean, maybe this is some people who

32:57

are really wanting

32:58

this, but I seriously, if

33:01

you if the only way you could get

33:03

married within a church that you

33:05

belong to is if the long arm of the

33:07

law comes and makes some person

33:09

who hates you do it, Yeah. Is

33:11

that how you want your beautiful wedding day

33:13

to go? I just just like weird to

33:15

me. Look, I I get that there are plenty

33:17

of queer people who for whom religion

33:19

is still important to them, but feels it

33:21

feels weird to me. I feel like if they're

33:23

that bigoted against you,

33:24

maybe think about your membership in that church.

33:27

I endorse that one hundred percent. And

33:29

then finally, a section that says there will be no impact on

33:31

anything that's not marriage, including

33:33

tax status, scholarships,

33:35

and accreditation. So, you know, you can

33:37

still have your private

33:40

Christian schools that are going to teach

33:42

that, you know, bigotry.

33:44

And and this will this law

33:46

will not revoke the

33:48

status of those private schools. By

33:50

the way, like separate episode, Liberty

33:53

University should not be accredited, that's a

33:55

longer episode that we don't have time for.

33:57

So put that all together. This does not

33:59

kind of firebirdsville in the sense that

34:01

if the Supreme Court

34:03

activist reverses of Virgifyl

34:06

and gets rid of the fourteenth

34:08

amendment protection for

34:10

marriage equality. that will

34:12

mean that states. I've been

34:14

using Alabama because I'm sure they would

34:16

be on the front lines to

34:18

do this. will be able to go back and pass

34:20

individual state level marriage

34:22

amendments that will codify bigotry

34:24

into state

34:26

law and they will not be protected by the constitution.

34:28

This is a dereliction of duty of

34:30

the constitution. It would be one of

34:34

the most grow test things that the Supreme Court can do, but it

34:36

would rank right up there with, you know,

34:38

overturning Roe versus Wade

34:40

and reversing a

34:42

half century of

34:44

individual bodily autonomy over the right

34:46

to control your body and to plan your

34:48

family. So yeah, it's probably on

34:50

the on the near horizon. This

34:53

absolutely takes steps to protect

34:55

people who have existing

34:58

marriages and

35:00

to prevent that kind

35:02

of internecine warfare

35:04

in which states say, well, we're not we're not gonna

35:06

recognize a Maryland marriage now.

35:08

It is unambiguously a good thing

35:11

and anybody telling you it's not

35:13

a good thing, I think,

35:15

is either way

35:18

overemphasizing the, you

35:20

know, SOP to Republicans that were given out or they're just

35:22

mistaken about it. This is a thing that we should

35:24

celebrate, and I do celebrate. Alright.

35:26

It's good. Take a good

35:28

thing. There you go. And it passed its

35:30

passing as a law. Yeah. We talked about, you

35:32

know, how difficult it's gonna be to get rid

35:34

of Riffra. Like, this will be a

35:36

difficult thing to get rid of.

35:38

And

35:38

that's a

35:40

good thing.

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to do. And we're joined by Liz

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Dye. Once again, welcome to the show for

38:30

a second time, Liz. How's it going? Hey.

38:33

How are you? I hear you're going to explain to us what's going

38:35

on with the stop woke

38:38

act. Did they stop the woke? Is it

38:40

stopped? They they

38:41

did. It is It is a

38:43

sleep. It is sleeping like a baby. Thank god. little white baby. They should

38:45

call sleep the World Act.

38:47

A little white. Angelic.

38:50

What's happening with

38:52

the with the I I consider myself pretty well

38:54

because I'd better stop. I guess I'd better just

38:58

freeze.

38:58

Okay. So in April, Florida

39:00

governor Rhonda Santos signed the so

39:02

called stop woke up to as he put it

39:04

stand up against discrimination and woke in

39:06

Doctor Nation. and the law makes it illegal

39:09

to espouse, promote, advance,

39:11

inculcate, or compel students

39:13

or employees to believe in eight

39:15

specified concepts, which is actually a pretty funny echo of George Carlin's

39:17

seven dirty words, you can't sit on

39:19

television. I don't think that they did that on purpose,

39:21

but it is funny.

39:24

parallelism. Yeah. Exactly. So you can't

39:26

say that members of one race or

39:28

sex are morally superior. I

39:30

agree with that part. Yeah. Right? I mean,

39:32

cool or that anyone

39:34

race is inherently oppressive or

39:37

privileged?

39:37

Inherently. Those are

39:39

not opposites. Right.

39:40

You can't say that one race bears responsibility for oppressing another

39:42

or should receive special treatment to redress

39:45

past wrongs or that anyone should feel

39:47

guilty about things they're grandparents

39:50

did. And you can't say that, quote,

39:52

virtues as merit excellence, hard

39:54

work, fairness, neutrality, objectivity, and

39:56

racial color blindness are racist

39:58

or sexist. or were created by origin

40:00

or sex to impress members of another

40:02

race color national origin or

40:04

sex. Okay.

40:04

Just to jump in lot there.

40:06

Concepts such as neutrality, objectivity,

40:09

and racial color blindness were

40:11

in fact invented by white people.

40:13

Oh, so people. Right.

40:15

So this law basically bans all

40:17

DEI programming and furthermore threatens to

40:19

yank educational funding if schools teach

40:21

that structural racism exists or

40:23

that it confers advantages on people who have been on

40:25

the receiving end of its benefits for hundreds of

40:28

years. So like, that's not great.

40:30

So the law is immediately

40:32

consortium of academic and student plaintiffs

40:34

led by a history professor

40:36

Adriana Novoia at the University of

40:38

Southern Florida and a student who's enrolled

40:40

in one of

40:41

courses, which covers these so called, what

40:43

concepts. Plus anyone who remembers

40:46

that we have the first amendment

40:48

could also I mean, that's also a thing. Right. Right.

40:50

Okay. So

40:50

it's not great. But you as a person who

40:52

remembers the first amendment do not have standing.

40:54

Oh, I don't? Okay.

40:56

No. whereas Professor

40:58

Novoia and her students

41:00

do. So this case landed on

41:02

the docket of Judge Mark Walker in the Northern

41:04

District of Florida and Obama appointee.

41:07

and he's written this, like, delightfully pissy opinion.

41:09

Just

41:09

-- Dynasty. -- DeSantis'

41:11

position. I mean, DeSantis' position is

41:13

that he is somehow banning discrimination

41:16

and preventing a hostile work environment

41:18

with this ridiculous law. It claims

41:20

to be striking a blow against

41:22

indoctrination by preventing college professors

41:25

from expressing their opinions. Like, how

41:27

do you claim you're against censorship when

41:29

you're out there literally banning speech?

41:31

So this is all culture war bullshit about college

41:33

students being snowflakes, but these guys are the ones passing

41:35

laws to prevent their delegate undergraduate

41:37

and even graduate years from finding

41:39

out they're like, redlining is

41:42

bad and maybe actually had some

41:44

tail and effect on wealth

41:46

distribution today. So that's

41:48

what's happening here. Here's a fun quote from their

41:50

very first paragraph. Judge Walker says to

41:52

confront certain viewpoints that offend the powers that

41:55

be the state of Florida pass the

41:57

so called Stop Wop Act in twenty

41:59

twenty

41:59

two redubbed in line with the state's Double

42:02

Speak, the

42:03

Individual Freedom Act. The law officially bans professors

42:05

from expressing disfavored viewpoints in university classrooms

42:08

while permitting unfettered expression

42:10

of the

42:12

opposite viewpoint. Defendants argue that under this act, professors

42:14

enjoy, quote, academic freedom so

42:16

long as they express only those

42:18

viewpoints of which the state

42:20

approved. This is positively

42:22

dystopian. Good start. And it

42:24

is. It is positively dystopian. I mean, for

42:26

all the rights carving about Marxism and

42:28

George Orwell, they're the ones

42:30

passing speech codes and calling them stuff

42:31

like the first amendment celebration and protection

42:33

act or whatever.

42:36

Okay. So the

42:37

state's argument is basically that they're the employer and they get to

42:39

set the curriculum and control what professors say, which

42:41

is kind of

42:44

true but not positive because the case hinges on the

42:46

difference between viewpoint discrimination

42:48

and content discrimination. So theoretically,

42:52

The law allows professors to teach about topics that they're not

42:54

allowed to endorse. So law school professors can

42:56

teach about affirmative action, which is after

42:58

all under consideration at the Supreme Court. state's

43:02

own admission, they can't say affirmative

43:04

action is good. And so if they,

43:06

like, invited Supreme Court justice, Sonia Sotomayor,

43:10

to address the class and she said, as she does say in her affirmative

43:12

action helped me and was

43:14

good. That would count as hate

43:18

jeopardizing the law school's state funding. Like, the the

43:20

state could then come in and

43:22

cut all the funding for University of

43:24

Florida law school if it invited Justice

43:26

Sotomayor. So that's ridiculous,

43:28

and also a perfect illustration between

43:30

of the difference between content and viewpoint.

43:32

Right? Because content is affirmative

43:34

action is XYZ and

43:36

viewpoint is affirmative action is good. You're allowed to do one

43:38

but not the other. And there is an eleven circuit

43:40

case on point here. It's a nineteen

43:43

ninety one decision known as Bishop

43:46

Eranov, in which a physiology professor in Alabama

43:48

was reprimanded for inserting his religious

43:50

beliefs into his lectures. It actually

43:53

He was worse than that. He had these like so called

43:55

optional sessions right before an exam to discuss

43:58

intelligent design theory. So I don't know

43:59

whether you're Do your

44:02

viewers like intelligent design

44:03

theory? No. Right. So

44:06

no. So it wasn't really subtle. And this

44:08

was, again, all at the college

44:10

level.

44:10

Right. if you're teaching biology or physiology and you say human

44:12

eye is proof that God exists because

44:14

it couldn't possibly have come from evolution,

44:18

That's you in starting your viewpoint. But the court in that situation

44:20

said there was a three part

44:22

balancing test to to see whether

44:26

the state could regulate this speech. The first prong

44:28

is the context. The second prong is

44:30

the university's position as a public employer,

44:33

which may reasonably restrict the

44:35

speech rights of employees, particularly that content

44:38

imparted during class time. And the third problem

44:40

is the strong predilection for

44:42

academic freedom as an adjunct

44:44

of the free speech rights to the

44:46

first amendment. Right? So there's the court acknowledging students and teachers

44:48

in a university context

44:50

have first amendment rights.

44:53

So

44:53

what was the result of the

44:55

Aaronov decision? Key

44:56

was not allowed to

44:57

host these kind of prayer meetings that

44:59

were optional right before the exam

45:01

But the standard as judge Walker says does

45:04

not lead to the same result

45:06

here. Right? Because the first

45:08

prong here The context judge

45:10

Walker notes that the state is trying to impose

45:12

its own speech code on university

45:14

professors, and that will

45:16

chill speech. And as to the

45:18

second

45:18

prong, right, the university's interest in regulating speech of employees,

45:20

this is not a content

45:22

regulation. This

45:25

is an attempt to stifle speech by kind of making

45:27

these spatially bullshit claims to be protecting minorities

45:29

and preventing workplace discrimination.

45:32

And by workplace they acknowledging that racism

45:35

is bad and it impacts some people

45:37

more than others. Right? You're not allowed

45:39

to say that. So

45:42

here's a fun little or well quote from the opinion that

45:44

likens the woke panic of today

45:47

to World War two's

45:48

admiration

45:50

of

45:50

Stalin. It was kind of the the standard of the day.

45:52

So judge Walker says it is not lost on

45:54

this court that mister Orwell in the original

45:56

preface to his iconic political

45:59

tire of the rise of

45:59

Joseph Stalin, animal farm,

46:01

was responding to liberal elites of his

46:03

time. According to mister Orwell, the censoring

46:06

of animal farm was merely a

46:08

symptom of fashionable orthodoxy of that era, namely an

46:10

uncritical admiration of Soviet

46:12

Russia.

46:12

So to

46:14

here, The state

46:16

has responded to fears of wok conductor nation in university

46:19

classrooms, but rather than combat woke

46:21

ideas with countervailing views in the

46:23

marketplace of ideas, chosen

46:26

to eliminate one side of the

46:28

debate. This only highlights the problem with

46:30

viewpoint discrimination in the name

46:32

of combating indocter nation

46:34

of one perceived orthodoxy, the state

46:36

allows for indoctrination in its preferred

46:38

orthodoxy. I think he

46:40

might be likening Ron DeSantis

46:42

to Stalin -- To stroke. -- I mean, his boss. We

46:45

don't get

46:46

too many opportunities to shout out

46:48

judges on the show. Usually, we're we're

46:52

criticizing. So so that's great. Let me see if I can't

46:54

reconcile these two cases

46:56

because I think that the average

46:59

listener is probably sitting there thinking like, I

47:02

agree with Bishop versus Aranov

47:04

if all of a sudden even

47:06

college, if you know, my

47:08

son's biology teacher at

47:10

university level if I found out

47:12

that right before the exam,

47:14

he was having, like, secret

47:16

optional sessions in which

47:18

you came in and, like, it was like, hey, if you

47:20

wanna put that this is all bullshit on the final,

47:23

Like, that's cool with me and just put Jesus

47:25

did it. Like, that would be a

47:27

problem even at the university level. Even when

47:29

we've sort of been cavalier

47:31

about, like, how university courses, law school

47:33

graduate courses can have a

47:36

distinct viewpoint and a political bias.

47:38

But I think

47:40

and just let me know if I'm down

47:42

the right trailer. I think the

47:44

difference would be it would be

47:46

perfectly reasonable

47:48

in a college biology class to talk

47:50

about and then present

47:52

arguments for and against intelligent

47:56

design in that biology classroom. And in

47:58

fact, when I took geology and

48:01

college a certain number

48:03

of years ago, I had a

48:05

professor who presented and refuted

48:08

creationist flood geology in

48:10

one episode, you know, in one

48:13

of

48:13

the class period. Right. And,

48:16

you know, I had met with him afterwards, and

48:18

I was like, but people

48:19

don't really believe this thing that you

48:21

chopped out as a straw man in class tonight. He was

48:23

like, oh, you sweet summer

48:26

child. And

48:28

moreover, like, And, Liz, I'm sure, you

48:30

know, you saw this in in your

48:32

law school classes. I took

48:34

law and economics. For example, it was

48:36

presented from the perspective of Law and economics

48:38

at the time is a, you know,

48:40

conservative legal theory that has since fallen out

48:42

of fashion, is a good thing. It was

48:44

presented from

48:46

an unabashedly kind of right wing monetization of claims

48:48

is a good idea standpoint.

48:50

I also took critical legal

48:52

studies, which

48:54

is presented from a rather opposite standpoint? I don't know.

48:56

Am I kind of hitting on the right sort

48:58

of harmonization of these? Or is this going

49:00

to come down to the third factor? Well,

49:03

Andrew. not everybody went

49:05

to Harvard Law. Some people went to law schools where

49:07

they taught you useful shit. Oh,

49:10

really? What's that one? Yeah. No. I mean, it's

49:12

it's cool. So

49:14

but if those of us who went to law schools

49:16

where they you took things like family law

49:18

and those of us who I mean, you and

49:20

I went to law school, maybe roughly at the same

49:23

time, and we discuss things like Bowers be

49:25

hardwick where sodomy was still illegal

49:27

and was remembered before gay marriage.

49:30

And under these kinds of codes,

49:32

the state could have made it illegal for us to take position

49:34

that gay marriage should be legal.

49:36

Right? That that no professor would be

49:38

able to take that kind

49:41

of a position. So, yeah, I think I think exactly on the right track here

49:43

that there was a difference and that

49:45

this is, can we discuss a thing

49:47

rather than a teacher

49:50

saying, Wink, wink, nudge, if you wanna say that God did it.

49:52

Cool. So this is this is clearly different.

49:54

And that as the state here

49:56

is trying to say that it's

49:59

fighting against indoctrination. It is

50:01

in fact seeking to indoctrinate

50:03

in its own ideas. So

50:05

here's what Judge Walker percent The state of

50:07

Florida says that to avoid indoctrination, the state of Florida can

50:09

impose its own orthodoxy and can indoctrinate

50:12

university students to its

50:14

preferred viewpoint. This

50:16

extravagant double speak flies in the face of

50:18

quote, the invaluable role academic

50:20

freedom plays in our public schools,

50:22

particularly at the post

50:24

secondary level. So it's a pretty good

50:26

opinion and unstenting in its criticism of DeSantis

50:29

aka Stalin. Correct.

50:30

But but now I have to ask the hard

50:33

question, which is Okay, US District Court, Federal Court

50:35

in Florida. This is now headed up to

50:38

an awfully conservative eleventh

50:40

circuit. Are we gonna have you back on

50:44

in six weeks to discuss this being.

50:46

Oh, here. Allow me to be the

50:48

optimist of the show. There

50:50

is no this is so bad. I can't

50:52

even see a conservative circuit

50:54

court holding it up. Right? I mean, it's

50:55

just so blatantly unconstitutional. Am I

50:58

wrong? Am I too

51:00

optimistic? I tend to

51:01

think you're not wrong. So I do think

51:03

that judge Walker has done all

51:06

that he can to make

51:08

this stand up at the

51:10

eleventh circuit. including referring to a an opinion by

51:12

Dan's Third Circuit judge, Samuel

51:14

Alito, in support of this position. And

51:16

also, name

51:18

tracking several federalist society

51:20

papers decrying judicial activism and

51:22

saying he's not gonna engage in judicial

51:25

activism. He's gonna stick with

51:27

this eleven circuit precedent. And one of those

51:29

papers is by that Venus Iliasha hero who got himself canceled culture

51:31

out of Georgetown Law. Remember, he made those

51:33

really, really gross racist statements

51:36

about just is Catanji Brown Jackson during her nomination. I remember

51:38

this,

51:38

but that sounds horrible. So this person said

51:40

Oh, so good. So good.

51:43

Anyway, So who knows what the

51:46

eleven circuit is gonna do, but we're trying fingers crossed.

51:48

I'll take a win trying to

51:51

bulletproof the opinion over the

51:54

reverse. So glad we can celebrate

51:56

some good news for now. Anything else

51:58

we need to know about stopping the stop

51:59

locack? No. stop. Just

52:02

stay well.

52:02

Stay well. Can I be look. Give it to

52:04

me straight. Can I wake up or do I need to take a

52:06

nap? I I don't even I'm gonna take a nap just

52:08

to be safe. Oh, honey. I I think I'm gonna It's Friday.

52:11

We all need app. see as to. Well, thank

52:13

you so much,

52:13

Liz. Other than on Twitter at

52:16

five dollars

52:18

feminist, where else can people find you? Read your stuff. Appreciate it. I make

52:20

a lot of words. I

52:22

make a lot of words at Woncat

52:24

and also at Above

52:26

a lot. You do make a lot of words. Very impressive. Everybody check it

52:28

out. Great stuff. Always read your stuff.

52:31

Thanks. See you guys.

52:33

the guys Oh,

52:33

no social this firm has

52:36

ever failed the bar

52:38

exam. No kidding. And

52:40

now it's time for T3BE

52:42

That's Thomas takes the bar

52:44

exam. Each week, I attempt to

52:46

answer a question using only

52:49

psychic powers. Yeah. And we'll see how how far it

52:51

gets me. With this weird book, that's either an

52:54

easy question or the most dastardly trick

52:56

question, and there's no

52:58

in between So let's find

53:00

out which one it is this time. Alright,

53:02

Thomas. A man was

53:04

charged with larceny of a coat

53:06

from a barstool. State. Was

53:09

it at night? No.

53:11

Never mind. The

53:12

state produced a witness who testified

53:15

that the man said before he took the coat. Gosh,

53:17

I'm so forgetful. I must have left

53:19

this here hours ago.

53:22

It could easily have gone missing. The judge

53:24

declared

53:24

a mistrial rather than

53:26

an acquittal. Can the man

53:30

be retried? A,

53:31

yes, this retrial will not

53:33

offend the federal constitution. B,

53:35

no, under the federal

53:37

constitutional retrial requires new evidence.

53:39

c, yes, if the man can be

53:41

proved guilty. Mhmm. Or d, yes, under

53:44

the eerie doctrine.

53:46

No. God. Okay,

53:49

charged yes, produced a witness

53:51

who testified that the

53:52

man said before he took the coat,

53:56

gosh, I'm so forgetful I must have left this

53:58

here hours ago.

53:59

It could easily

54:01

have gone missing. I

54:03

don't know what I'm wondering, okay, I don't know if that's just

54:06

like for fun. Just

54:07

some color on the thing. I don't know why

54:09

that affects the question of

54:12

the retrial. because the man who was charged with taking the

54:14

coat said, I must have left

54:16

this year hour. So he's, like, doing that loud,

54:18

like, covering for his

54:20

crowd. Yes. definitely my

54:22

code everybody. Let me just take

54:24

that code. They're taking now. Otherwise,

54:26

someone else could take it. So it's like that kind of

54:28

thing. declared

54:30

a mistrial rather than an

54:32

acquittal. Maybe we can assume this

54:34

is like a bad faith judge.

54:37

who's

54:37

like, oh, no. This is

54:40

dead. This is devastating to my

54:42

case, and it's like clearing

54:44

the guy. And so rather than the judge

54:46

being like, well, Yeah. I'm gonna I mean, I

54:48

don't think the judge would have declared an

54:50

acquittal unless it's a bench

54:52

trial, but whatever.

54:53

Rather than that, the judge is

54:55

like, no, we'll do mistrial. so

54:57

that we can get them again. So, okay. Okay. This is maybe

54:59

not as this might be a little more difficult than

55:01

I thought because you would want there to

55:04

be some protection against just being

55:06

infinite retried because a

55:08

judge has it out for you or something.

55:09

But I feel like

55:12

That's

55:12

not very plausible and also you draw a different judge

55:15

every time probably. Would that be a

55:17

big enough problem for them

55:18

to have written in a

55:20

rule that would specify

55:22

like if the mistrial was inappropriately

55:24

declared, then you can't have

55:26

a retrial. That's what I would have to

55:28

exist. The way I'm reading this question. can

55:30

the man be retried? because my first instinct was, yeah, of course, a mistrial means

55:32

you can retry them. That's just how mistrials work.

55:34

Otherwise, you would be incentivized to

55:36

just get a mistrial every time

55:39

and then you're free to go, I don't think that's how it

55:41

works. So, a, yes, this retrial would

55:43

not offend the

55:46

federal constitution. So

55:47

a, I think, is a plausible, for

55:49

sure, plausible answer. The only no answer

55:51

is

55:51

b, no under the Federal

55:53

Constitution a retrial

55:56

wires new evidence. And the problem is there's no way

55:59

that's true. A

55:59

retrial does not

56:01

that doesn't require new

56:04

I mean, you there's mistriles all the time. Like, if a the

56:06

defendant falls over and his pants fall

56:08

down or something, and it's like, ah, retrying this

56:10

trial because the jury saw it.

56:14

You know, like the the stuff can happen inappropriately in front

56:16

of the jury that's not really anyone's fault

56:18

that just ends in a

56:19

mistrial. It's not like you have to say, well, we

56:21

need new evidence in order

56:23

to retry unless I'm really missing something. So

56:25

that sucks because that eliminates the

56:28

only no answer which is be.

56:30

See, yes,

56:30

if the man can be proved guilty see

56:32

that there's no way, well, if the men can be proved guilty. But

56:34

that's just gonna be for us a curatorial

56:37

discretion. That's not gonna be like a rule.

56:39

So I think no one

56:42

see and d, yes, under the Eyrie doctrine. So that's the wild card.

56:44

So for that for d to

56:46

be true, it's almost like it'd have

56:48

to be a double bluff. It'd be like

56:50

there is a reason that he shouldn't be able to be retried, but there's an

56:53

eerie doctrine that allows him to

56:55

be. That could be. I mean, this could be

56:57

one of those huge trick ones.

57:00

we've we've been on a streak of straightforward ones. So I'm tempted

57:02

to just pick d because it's weird, but I

57:04

mean, I think I'm gonna have to go a, yes.

57:06

If there was a better no answer,

57:10

I could go for it. If there's a no answer that was something like

57:12

no because, you know, it can

57:14

be proven that the the judge was inappropriately

57:16

declared a mystery. I don't know.

57:19

Something like Like, I could see going for that, no

57:21

answer. But between

57:22

a and d and d would

57:24

be a diastrically trick that I just

57:27

cannot get right. And I think it's not worth the probability of

57:29

just guessing that for Shits and giggles. So I'm

57:31

gonna go a, but it could be d,

57:33

my second answer. Alright. And if you

57:35

wanna play along with Tom Moschino, how to do that, just share out

57:37

this episode on social media, include the

57:40

hashtag T3BE include your

57:42

guess, your reasons. Therefore, we will pick

57:44

a winner. and shower that winter with never ending fame and fortune, fame

57:46

and fortune, not guaranteed.

57:48

And

57:49

thank you. And

57:51

now it's time to thank our new patrons at patreon

57:53

dot com slash long. By the way, Andrew,

57:55

I feel like it's maybe a

57:57

better time than ever to become a patron.

58:00

you're about to, pretty soon within a week or

58:02

two, get a ton of

58:04

extra

58:04

stuff as a patron, a ton of extra

58:06

content with absolutely

58:08

no extra cost and no extra ads because

58:10

you don't get any ads. So probably a

58:12

really good time to go on patreon dot com. Well,

58:14

And we just we just did a q and a. That is being released. We'd

58:17

be out. All studios out for patrons,

58:19

all sorts of good stuff. Why don't you start

58:21

a soft Android thinking or

58:24

new patrons patreon dot com

58:26

slash lot. Alright. Big thanks to dinosaur sheriff.

58:28

Ryan Flannery, Steven G, Paul

58:33

McMillan Kevin Mullins, I'm attracted

58:35

to lawyers because they are

58:37

always appealing. Okay. Mary

58:40

vote, Ryan Bell,

58:42

Alethia four eighty five, something

58:44

creative here. Alexandra and

58:47

Castro Navarro, David, Hi. I'm white lady. Hi.

58:49

Hi, white lady. Gregory F Ladel and

58:52

Robert. Thank you all so much for

58:54

supporting the show and Thomas take

58:56

it away. Thank you to

58:58

Alex Jones, a wholly owned

59:00

subsidiary of Newtown Public

59:02

Schools. That's a good one. Perfectly

59:04

Panda.

59:05

David Mayon, Greg,

59:06

Rita, Sam, Tim Dufresne, Alexander

59:10

Whittner,

59:10

Hades. Oh, god. We

59:13

got Hades. Oh, wait. Finally. open

59:15

up a new

59:16

market for us, I think. I think we would do

59:18

well in the underworld. I was gonna say,

59:20

and and if there's people who hate our podcast, you

59:22

know, that that they might have to listen as

59:25

a punishment. also good. Yeah. Eric

59:27

Stratton. Adnan Saiid is

59:29

obviously innocent. There we go. Hey. Okay.

59:31

We'll read it. Aya Maston,

59:34

a cat named Yonder,

59:36

Aaron Holmes, Ellen, Andrew

59:40

j Dufour, and Joe P. Thanks new patrons. Alright.

59:42

Hope you enjoy the ad free content and

59:44

pretty soon the tons of

59:46

extra stuff.

59:47

And that's Thanks so

59:48

much for listening. Thanks to Liz Die. As

59:50

always, she's fantastic and hoping

59:52

for more Liz Die in our future.

59:55

We'll see. Thanks for the breakdowns, Andrew, and

59:57

we'll see everybody for the,

1:00:00

again, normal format next week, but week

1:00:02

after that. Interesting. You can't

1:00:04

wait. We'll see then. I move for

1:00:06

a bad court thingy.

1:00:08

You mean a mistrial? Yeah.

1:00:10

That's why you're the judge and I'm the law

1:00:12

talking

1:00:14

guy. This has been

1:00:16

opening arguments with Andrew and Thomas. If you love the

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Music, which

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was used for the commission.

1:01:25

Hi. I'm Mikaela

1:01:27

from Columbus,

1:01:30

and I would absolutely recommend Thrissy. Because the

1:01:32

accident wasn't my fault, Thrissy stepped in to

1:01:35

handle the other person's insurance company, so

1:01:37

I didn't have to do a

1:01:39

thing. While they were fixing up my

1:01:41

bumper. They actually fixed up a few of the scratches that were

1:01:43

there and now it looks brand new.

1:01:45

I would totally recommend three

1:01:47

c to my friends and family, and I have

1:01:50

been.

1:01:50

Three c pie shop.

1:01:53

The carnival can come

1:01:55

and be prepared.