0:05

Welcome to reprots fight back a podcast

0:07

where we explore all things, reproductive,

0:10

health, rights, and justice. I'm your

0:12

host, Jenny wetter. And I'll be

0:14

helping you stay informed around issues like

0:16

birth control, abortion, sex,

0:18

education, and LGBTQ

0:20

issues, and much, much more giving

0:23

you the tools you need to take action

0:25

and fight back. Okay, let's dive

0:27

in.

0:37

How's everybody doing? I'm your host,

0:39

Jenny wetter and my pronouns. Are

0:41

she her y'all we made

0:43

it through election season. Well, mostly

0:45

there's the Georgia runoffs , but we have

0:48

made it through and there

0:50

is going to be a huge swing and

0:52

reproductive rights policy

0:54

that comes out of a Biden Harrison administration

0:57

from what we are seeing and a Trump

0:59

administration. And that is going to

1:01

be wonderful, but even more

1:04

exciting is we

1:06

have the first woman vice president,

1:08

the first black woman, vice president

1:11

, the first South Asian vice-president

1:14

. That is so amazing.

1:17

There's been so much stress in the last

1:20

weeks that we haven't had a chance to really

1:22

let that sink in. I mean, I know I haven't,

1:24

it's just so wonderful that we are

1:26

having the first woman of color vice president

1:29

, and that is really something to celebrate.

1:32

I had just got so

1:34

much joy from listening

1:36

to DC celebrate. It was

1:38

something my neighborhood just

1:41

erupted into cheers, and they

1:43

would spontaneously erupt off and on

1:45

throughout the day there were horns

1:47

honking. There were fireworks. The

1:49

joy in the area was just

1:52

unreal and it brought me happiness to

1:54

see the relief, enjoy

1:56

coursing through our neighborhood. And

1:58

he just, it was something

2:01

it'll be great to see what policies

2:03

we're going to get around reproductive health and rights

2:05

coming out of a bite in Harrison administration.

2:09

I'm not going to focus on that today. We'll talk about

2:11

it in a future episode. What

2:13

are the hopes for the reproach community? What do we hope

2:15

that we can get out of a Biden Harrison

2:17

administration? And we'll talk about

2:19

that because we have high hopes

2:23

on the election. I don't know that too

2:25

much exciting has been happening in

2:27

my life. Still, basically

2:29

staying at home. I'm not going out a ton

2:32

and still baking. So

2:34

let's see what have I done? I tackled

2:37

another recipe that intimidates me.

2:39

So I don't know what came over me all of

2:41

a sudden night decided that I really needed to try

2:44

to make bagels. So I

2:46

made cinnamon raisin bagels and y'all

2:48

they were delightful. They

2:50

weren't as scary as I thought they were. So

2:52

again, lesson learned, quit being so intimidated

2:55

by recipes. You haven't tried yet

2:57

just because they seem like they might be a little scary.

2:59

Doesn't mean

3:00

They are they're delightful and I will

3:02

absolutely be making them again. Yeah,

3:04

big littles who knew. So

3:07

that's the biggest thing starting

3:09

to look at the holidays. And

3:12

I know my parents really would love for me

3:14

to go to Wisconsin,

3:17

but I just, it doesn't

3:19

seem like it's the best choice at the

3:21

moment. And so that's going to be a

3:23

real bummer. That'll be the first year ever. I won't

3:25

be home for the holidays, but

3:28

I would rather keep everybody safe than

3:30

put people at risk. So I

3:32

know it's the right thing to do, and we'll be able to get

3:34

together when things are safe and have

3:36

a big celebration then, but it's still

3:38

a little sad, but everybody's

3:41

health is worth it. So I

3:43

stick with that. I guess someone

3:45

that will turn to this week's episode. So

3:47

I know we've talked a little bit about the Supreme court

3:49

recently and with the passing of

3:51

justice Ginsburg, but we haven't had a chance

3:53

yet to talk about the new

3:56

justice Amy Coney Barrett. So

3:58

today we are going to do that. We're going to talk

4:00

about her. And we're also going to talk about two

4:02

of the cases that have been before the

4:04

court already, since she's been on it. And

4:07

that's an LGBTQ rights case

4:09

and a challenge to

4:11

the affordable care act. So helping

4:13

me do that, I have Caroline Riley

4:15

at rewire news group , and

4:18

we have a wonderful conversation about all

4:20

things SCOTUS. So with that, I'm going

4:22

to turn to the interview. Hi

4:24

Caroline. Thank you so much for being here today.

4:27

Thank you for having me before we get

4:29

started. Do you want to take a second and introduce

4:31

yourself and include your pronouns?

4:34

So my name is Carolyn Riley . I'm a legal

4:36

fellow with rewire news group and

4:38

my pronouns. Are she her?

4:41

I'm so excited to have you on today

4:43

to talk about a lot of things, SCOTUS,

4:46

which I feel kind of a lot of recently,

4:48

but there's been a lot indeed.

4:51

So, so far on this podcast, we

4:54

haven't had a chance to talk about Amy Coney Barrett yet

4:56

because there've been a lot of other reproach things

4:58

happening that we've had to talk about. So

5:00

maybe let's start there. Can you tell us a little

5:03

bit about justice Amy Coney Barrett?

5:06

Oh boy. We're not used to seeing that

5:08

yet.

5:08

No, I think it's going to take a while for

5:10

that to register in the brain as a real thing.

5:13

I mean, first of all, just the fact that we've had this

5:15

administration nominate three Supreme court justices

5:17

is really to be Frank kind of thickening

5:20

and Barrett is

5:22

no different than Gorsich and Kavanaugh

5:25

and that she has a proven track

5:27

record of being a conservative judge,

5:29

even though she was only a judge for a very, very short

5:31

time before she was nominated to the bench.

5:33

I think that's sort of unique about her.

5:36

Usually there's a little bit more judicial experience,

5:38

but I think she was nominated

5:40

for a specific reason. And that was to further

5:42

the agenda of this administration. We've seen

5:44

this administration, we talk a lot and

5:46

we talked about this at rewire this week, but we've heard

5:49

a lot of talk, especially during the election about

5:51

packing the courts and who's going to pack the courts.

5:53

And I think it's really critical to say that for four

5:55

years, the Trump and

5:58

conservatives have packed the courts.

6:00

They might've not expanded the bench. They might've

6:02

not added judges to panels, but

6:04

they have stacked the courts

6:06

with justices that they know will

6:09

uphold their agenda. And so Amy

6:11

is just an extension of that. She's

6:13

someone who has been not

6:16

clandestine about her opinions on

6:18

abortion in the past. She has not

6:20

a great track record and by not a great, I mean really

6:23

terrible track record on a lot of progressive

6:25

issues. We found out a couple of weeks

6:27

ago, horrible rulings on things like

6:29

sexual violence and LGBTQ

6:32

rights. I mean, she is just everything you

6:34

would expect from a Trump appointee. And

6:36

so she was not a judge for very long.

6:38

She is now a Supreme court justice. She

6:41

famously forgot one of the protections in the

6:43

first amendment at her hearing, which I think that

6:45

is really everything you need to know about her. And it was

6:47

the right to protest, which again, pretty

6:49

telling. And what we've seen from

6:51

her in the first couple of cases

6:54

of this term is that she is exactly

6:56

the person we thought she was. She is someone who is

6:58

going to parrot, conservative, talking

7:00

points. She is an overtly

7:02

conservative judge in her questioning

7:04

and in the rulings that we've seen from her, I

7:07

think one of the more notable, maybe not notable,

7:09

but in this repo space is that she's someone

7:11

who has been vocal about her disdain

7:14

for abortion. And even though when I asked her

7:16

at the hearings, how would you rule

7:18

in RO she invoked the Ginsburg

7:21

rule, which I think she sort of twisted

7:23

will say it is an uncommon for

7:25

Scottish judges to not elaborate

7:28

on hypothetical's of cases that could possibly

7:30

come before them. That is what the Ginsburg rule is, is that

7:32

they won't indicate how they would rule on

7:34

an issue that would come before them . But something like row

7:36

, which is precedent. And it has been precedent

7:38

since the seventies, we have had judges

7:41

in hearings, pass comment on it, and

7:43

she was not up for that. She said , I'm not

7:45

going to talk about hypotheticals, but we don't really need

7:47

her to answer that question because we

7:49

have her name on a public letter

7:51

that called for the prosecution of abortion

7:54

providers. She publicly affiliated

7:56

herself with a religious right group

7:58

that not only oppose abortion,

8:01

but through their support for personhood

8:03

opposes the destruction of embryos,

8:05

which is a common and critical part of

8:07

IVF. So we don't really need

8:10

to hear it from Amy, how she feels

8:12

about abortion at the hearings. We know how she

8:14

feels about these issues and

8:16

it's really bad not to sugar

8:18

coat . It it's really bad. And we have an

8:20

abortion case coming before the Supreme court

8:23

coming from Mississippi. It keeps being rescheduled.

8:26

Where wondering if maybe that's because they're going to try to tie

8:28

in the Kentucky Danny band

8:30

with it. We're not sure yet why the court keeps

8:32

rescheduling it. But I personally, I

8:34

think I speak for people in the Reaper

8:36

world. I'm really scared of

8:39

her getting a 15 week ban in front

8:41

of her. So that's yeah.

8:43

Thinking back to her confirmation

8:46

hearing, which feels like forever

8:49

ago , it was so striking

8:51

to me the question she wouldn't answer,

8:54

not even directly, but around

8:56

IVF and others. I

8:58

feel like there was a birth control related one

9:01

that just were really concerning

9:03

thinking about the future for reproductive

9:06

health and rights.

9:07

Yeah. I mean her performance at

9:09

her confirmation hearings was

9:12

the speckle. It was days

9:14

of watching Republicans,

9:17

lob questions at her to make her look like

9:19

a sacred mother

9:22

figure who would do no wrong. And

9:25

couple of Democrats being

9:27

slightly easier on her than I think some of us would have liked

9:29

to have seen. And then a couple of Democrats Riley pointing

9:31

out that this is as

9:33

was true with a lot of the conservative

9:35

judges that Trump has appointed. She has

9:37

been handpicked by organizations like

9:39

the Federalist society. This is not

9:42

this idea that judges and the court

9:44

in general that are in traditionary lower

9:46

courts, Supreme court, isn't a political

9:49

government. Body is just a farce.

9:51

It's not true. I think it was Senator Whitehouse

9:54

who pointed it out. But when you look at the

9:57

funding and you follow the money

9:59

of where her nomination

10:01

came from, I mean, it's incredibly unusual

10:03

for someone with two years or I think

10:05

it was two years. It was a very short amount

10:07

of time of judiciary experience to

10:09

be appointed to the highest court in the land. Like something

10:12

is really weird. And when you

10:14

look at the people who pushed

10:16

her nomination and you follow

10:18

that track, what you see is that it is rooted

10:20

in these dark money organizations that

10:22

when I was in law school, the fence society was

10:24

a very specific type of

10:26

person. And it was not

10:29

the type of person that you wanted

10:31

to go to parties with. For starters, it's

10:33

not the type of person I was friends with, which I'm sure

10:35

comes as no surprise, shocking. It

10:37

was the kind of person who was like, can I just play devil's advocate

10:39

for a minute? It was like, you're not playing devil's advocate. This is what

10:41

you actually think. You actually think that row

10:44

is not finding precedent. And

10:46

just say that, and these are the people who

10:48

are behind her nomination is a partisan group.

10:50

It is, even if it's not explicitly saying

10:53

that it's places like the Thomas Moore law center, it's places

10:55

like the Federalist society, it's these conservative,

10:57

many of them religious organizations

10:59

that have their ties in conservative

11:03

money that launched

11:05

her. And I think that was aside from

11:07

her grass with policy, frankly,

11:09

at the hearing and her

11:12

sidestepping of every basic

11:14

question that would actually reveal who she really is.

11:16

This revelation that some of the

11:19

Senate judiciary Democrats made about

11:21

how her nomination came to be. I

11:24

think really says a lot, really everything

11:26

about her, which is that she's been appointed for

11:28

a very specific reason. Her hostility

11:30

towards the ACA was a huge feature

11:32

of the hearings. And again, something that she repeatedly

11:35

declined to speak on, but again, we don't

11:37

really need her to speak on that. We have her decisions on it.

11:39

We have, we are not at a loss

11:42

for an understanding of her opinion of the ACA.

11:44

And that is completely in line

11:46

with a judge that the f ederal society

11:49

would appoint and would favor

11:51

is someone who would oppose something, the affordable

11:53

care act or abortion access

11:56

or birth control or any number

11:58

of progressive issues, not even progressive

12:00

basic human rights. Let's be honest,

12:03

Frustrating thinking about what this is going to mean

12:05

to the court. So we already had

12:08

a five, four conservative majority,

12:10

and this turns it into a six , three majority.

12:12

And that kind of fundamentally changes

12:15

where the center of the court is and what this means

12:17

for decisions coming down the line to me,

12:19

we'll talk a little bit about what Amy Coney

12:21

Barrett being on the court is going to mean

12:23

For the court. Yeah, absolutely. I mean, like

12:26

you said, okay. So before I was

12:28

in my first or second year of law school,

12:30

when Scalia died, because my first

12:32

year and the nomination

12:34

of Merrick Garland, I remember my classmates

12:36

being like, cool , like a centrist

12:38

white guy. Great. I mean, better

12:40

than Scalia, to be honest, but

12:43

nothing radical. And then we watched

12:45

that seat stay open. And

12:48

when Trump appointed Gorsich,

12:51

it was horrific, but we were like, okay,

12:53

it was Scalia's seat. So

12:55

we still had Brier Kagan.

12:58

So to my, our Ginsburg and

13:01

Roberts who he tends conservative,

13:03

but we've seen him rule with the more

13:05

liberal judges on occasion.

13:08

And that is somewhat of a dark comfort.

13:10

We'll call it. And then the

13:12

retirement of Anthony Kennedy. I mean, I think

13:14

a lot of people, the court hit

13:17

hard and yeah, the court definitely turned with

13:19

Barrett . I mean, I think we had five, four prior

13:22

to Ginsburg's passing, but

13:24

one of those five was Roberts

13:27

and like Roberts penned the Obergefell

13:29

opinion, right? So he's not

13:31

someone who is as reliably conservative

13:33

as a Lido or a Scalia was,

13:36

or Thomas or even Kennedy

13:38

he's occasionally useful.

13:42

But when Kennedy stepped down, it

13:44

was that I think was really

13:47

the turning point for the court. Not

13:49

more so than Barrett, but that's

13:51

when things started to become a lot of

13:53

the stuff is going to be pretty irreparable for at least

13:55

a long time to come. Let's be honest. But

13:57

I remember I was working in a nonprofit here

13:59

in Massachusetts for survivors of sexual

14:01

violence. When that news announcement came out, I

14:03

remember sitting my office and the whole office, just

14:06

the hallway is just filled with profanities.

14:08

Cause everybody was like, what are you doing Kennedy? I

14:10

mean, everybody knows what he was doing. He was

14:12

stepping down to make room for someone like cabinets

14:15

. And then we had to watch the cabinet hearing, which

14:17

was a national trauma for all

14:20

of us. I think Gorsich, there

14:22

could be an argument can be made. It's weird because

14:24

Gorsich is a very conservative judge, but compared

14:26

to cabinet and Barrett, and maybe

14:28

it's because we've been going through this for so

14:30

long, I think he didn't seem as agregious

14:33

at the time, but he is still very

14:35

firmly conservative. And then we got Kevin

14:37

on who I think in Mani , she

14:39

has a wonderful name from , I think she calls him justice cake

14:42

stand, which is really correct,

14:44

you know? And then we got Kevin on again, like we still had Roberts

14:46

to sort of hold on to , and now we have

14:49

a six, three super of

14:51

conservative judges. So even

14:53

if we have Roberts rule with

14:56

the liberal judges, we still have

14:58

a conservative majority. So in order for

15:00

us to get a ruling,

15:02

not on the conservative side of the issue, we

15:05

have to pull a Lido Thomas

15:08

Gorsich, Barrett , or cabinet

15:10

over to a liberal side, which is a

15:12

lot different than even pulling

15:14

Kennedy over.

15:16

That's a real heavy lift,

15:18

Right? This is not pulling . I mean,

15:20

I don't even really think it's like pulling a Scalia

15:22

over. It's just this brand

15:24

of conservative judge, I think

15:27

is more, I don't

15:29

wanna use the word firebrand cause that has like almost

15:31

too positive a connotation, but it's dogmatic.

15:34

Exactly. That's sort of looking for it . You

15:36

know, I think what you learn in law school is

15:38

to a certain extent, there's the principle of originalism

15:41

and textualism and Scalia was really

15:43

in love with that. And occasionally

15:45

it meant that he ruled

15:48

in a way that was unexpected because he

15:50

respected the process of

15:52

law. That's not to say that he was

15:55

good people

15:57

or that he was a good, is there anything

16:00

it's just specifically a commentary

16:02

on how he practices a judge and

16:04

how he used the law. And

16:07

I think what you're going to see with someone like Barrett or

16:10

Kavanaugh , or even Gorsich is more of a district

16:13

guard for basically the principals

16:15

precedent and just how

16:18

the reverence of the court works. And of course, that's not unique

16:20

to Trump appointees any in Clarence Thomas,

16:22

his wife is like an out

16:25

now political person,

16:27

which is not supposed to happen in

16:29

the family of Supreme court justices. They're

16:31

supposed to be, we're not supposed to be, to be like, Oh,

16:33

that person has someone who hates the ACA in their house.

16:35

That's not supposed to. So

16:38

on the one hand, this is not unique to Trump, but

16:40

a six conservative majority on the court

16:43

is a nightmare. It really,

16:45

really is. And it's

16:47

just stomach turning to think about

16:50

what is going to happen when some of these cases

16:53

are being decided. We can get some

16:55

glimpses of that when we listen to oral arguments,

16:57

as we have been for the last couple of weeks, but it's

16:59

anybody's guess , I mean, we don't really know much about

17:02

Barrett and how she'll rule because she doesn't really have a storied

17:04

judicial career. And what we do know is a great,

17:07

so

17:08

I really, when the news came

17:10

about justice Ginsburg just

17:13

could see it all coming right. That

17:15

we were going to get somebody so terrible

17:18

to replace her and what that

17:20

would mean for so many

17:22

issues that we care about. And

17:25

I feel like I had my like week of mourning

17:27

and rage and falling apart. And then

17:30

now I just can't even think that

17:32

far ahead. Right. I need to get through

17:34

the next fight and not think about

17:37

it's bad and it's going to be bad for a

17:39

while .

17:40

Yeah. And I think we won't really know that

17:42

we can definitely speculate on how bad it is going to be.

17:44

But I think we won't really know until we start getting decisions.

17:47

And then we'll really get a sense of how

17:49

allegiance do these judges. Cause I mean, a lot of the

17:51

cases that are coming before this

17:53

term, I mean, we have the ACA case. We have

17:55

Fulton , which is a case about LGBTQ and family discrimination.

17:58

We have the 15 week abortion ban out of Mississippi.

18:00

These are cases that are about fundamental

18:02

rights as often the cases before

18:04

the Supreme court are. And

18:07

it's really terrifying to think that these

18:09

fundamental rights hinge on whether

18:11

or not one of the most conservative

18:14

members of the bench decides

18:16

to wake up and rule with the liberal

18:18

judges, despite a history of not doing

18:21

that.

18:21

Yeah. I feel like it's a , how bad it's going

18:23

to be. Are they willing to be really super

18:25

sweeping in their opinions or

18:27

only bad?

18:29

Right. And I think we saw that this

18:31

week with the ACA case where

18:33

the state of Texas.

18:34

Yeah. Let's take a second. And talk about that. What

18:36

is the ACA case

18:38

State of Texas and a number of other States

18:41

as soon as they always do to say that

18:43

the ACA is unconstitutional and an issue in this

18:45

case is which we've seen again

18:47

already, the individual mandate and

18:49

the petition on that side is that the

18:52

individual mandate is an improper use

18:54

of the government's taxing power, right?

18:57

So we have to rewind

18:59

for a little bit here. So the 2017

19:02

Congress, so 2010, when the

19:04

ACA was passed, they

19:06

made clear that the tax mandate was

19:08

a critical part of that legislation

19:11

in 2017 Republicans

19:13

in Congress zeroed out the

19:15

tax mandate because initially they

19:17

had moved to overturn the

19:19

ACA and after the public was like,

19:22

no, please don't do that. Awful people.

19:24

They were like, fine. We'll zero out the

19:27

tax mandate so that there

19:29

is no tax. If you're not enrolled,

19:31

that's, it's basically a moot point and rendered

19:33

that part of the ACA legislation

19:36

move and the way that the Republicans framed it

19:38

was it's part of a tax cut.

19:40

And we're doing this for you. We're going to save you money.

19:43

So now Republicans

19:45

are essentially challenging

19:48

a tax mandate

19:50

in the ACA that is

19:53

a moot point because it doesn't charge anybody

19:55

any money anymore because of them.

19:58

And what was interesting

20:00

about oral arguments on Monday

20:02

was so one of the issues

20:04

here is whether or not the tax

20:06

mandate is severable from the rest

20:09

of the ACA meaning, can

20:12

the court say, sure,

20:14

the tax mandate let's scratch

20:16

it, but we're going to leave the rest of

20:19

the ACA intact . And there's not

20:21

severability language in the ACA

20:23

legislation, but that does not mean

20:25

that does not preclude the court from

20:27

severing the individual mandate.

20:30

So really the question is can they

20:32

sever the individual mandate? That would be sort of the

20:34

moderate. Obviously, if we had

20:36

a different court, they might be able to

20:38

say the ACA is constitutional. We

20:40

ruled on the individual mandate. We've

20:42

done this before. Stop bringing these,

20:46

leave us alone. But we don't have that

20:48

court. Kevin asked

20:50

some questions this week that

20:52

indicated ki had some

20:55

positive leaning towards

20:58

the idea of severing the

21:00

tax bandaid and not repealing

21:02

the ACA in total, which

21:05

is good and surprising,

21:08

but also not necessarily

21:10

indicative of how he's going to rule, because

21:12

we know that he can be kind of wild Cardi

21:14

rogue, awful when he

21:16

hands down rulings, when he writes decisions, concurrences

21:18

, whatever. So that was interesting.

21:21

The middle case scenario is they

21:24

sever the tax credit. They say,

21:26

fine, we'll give this one to you.

21:28

It's not constitutional. And then

21:30

leave the rest of the ACA intact . I think Amani

21:33

explained it best this week on the

21:35

boom lawyer podcast . She said, basically severability

21:37

is like, you have a person who

21:39

has a tumor and severability

21:42

would be like, let's take the tumor out. Not

21:44

severing would be like, let's kill the person. So

21:47

the Republicans want to kill the person. And

21:50

then this argument for severability is we don't have to kill

21:52

the person. Let's just take out the part

21:54

you don't like and go on with our lives

21:58

challenges to the ACA already, because

22:00

it reveals a real level of hypocrisy

22:03

in conservatives. Because on the one hand, they're saying,

22:06

we zeroed out this tax credit, we

22:08

made it. So it doesn't charge you anything because we're really here

22:10

to make you not pay money. We

22:12

want to save you money. And now what they're doing is

22:14

they're trying to repeal a piece of legislation that saves millions

22:17

of people. Thousands of dollars on health

22:19

insurance, really what was

22:21

zeroing out the tag's credit really

22:23

about it. Wasn't about saving

22:25

anybody money. It was just about giving rise

22:27

to a new claim to challenge this

22:29

tax mandate in the ACA. So we

22:32

won't know how they're going to rule Cavanaugh's

22:34

passions were, we'll say a pleasant

22:36

surprise, which is not a term I ever really liked

22:38

to use about him. But again, it's

22:40

not an indication of how he'll rule. It's just, we

22:43

don't know. Yeah. I had people who were

22:45

excited go . This means it's going to be fine.

22:48

I mean, no,

22:51

no . I mean, he's, you know, he goes into chambers and he talks

22:53

to Amy and he talks to Gorsich

22:55

and Alito and Thomas and you

22:57

never know. I mean, even if we get Roberts , that's only

22:59

five, four, so we would need somebody

23:01

like habit awkward. So we don't have to be

23:04

entirely pessimistic. And you know, the fact that there is

23:06

that sort of severability option where we

23:08

can give a little bit of credence

23:11

to the petitioner's argument,

23:14

that's maybe good that we have that option

23:16

and that will maybe sway someone like Kavanaugh who

23:18

seemed amenable to it. But it's hard to say

23:21

it's not the kind of case you want before

23:23

a conservative super majority that's for sure.

23:26

Okay. So the ACA wasn't the only case

23:28

that has been in front of the Supreme court

23:30

that is of note lately, there was Fulton

23:33

versus Philadelphia. Do you want to maybe tell us a little

23:35

bit about what that case is? So

23:37

Fulton city, Philadelphia, what

23:39

it is basically, it's a Catholic

23:42

foster care agency in

23:44

the city of Philadelphia, CSS, Catholic

23:46

social services. They handle

23:49

placements for adoption and foster care

23:51

of children in the state. They are

23:53

a religiously affiliated organization.

23:55

They have a policy against

23:58

letting training through. So there's

24:00

two processes with foster care. There's a screening,

24:02

which is the initial application process to be a foster

24:04

or adoptive parent, and then matching, which comes

24:06

later when person has been accepted into the

24:09

system and they match them with a child. And

24:11

that will come up later as to why that's important. They

24:14

prohibit LGBTQ

24:16

families from entering into

24:18

the screening process. And what

24:20

happened was when you listened

24:22

to oral arguments, the petitioners wanted to make this

24:25

out. Like the city of Philadelphia was

24:27

as I think Jess said again on boom , Laura, this weekend

24:29

was really like fixing for a fight. They instigated

24:31

this. But what actually happened was this policy was ongoing

24:34

and people started reporting it to

24:36

local newspapers and it became

24:39

visible. So what

24:41

the court is hearing is I think what petitioners

24:44

CSS would like you to think this case is

24:46

about is religious discrimination.

24:49

What it really is about is the

24:51

right to parent the right

24:53

to have a family and

24:55

LGBTQ discrimination. Because

24:58

nowhere, if the court were to side

25:00

with the city of Philadelphia, which the

25:02

city of Philadelphia has anti-discrimination

25:04

legislation. So if you're getting state

25:07

money, if you're getting government money from

25:09

the city of Philadelphia, you can not engage

25:12

in discriminatory practices, which is pretty standard.

25:14

That's not an unusual thing. If you want to be a private

25:16

entity, you want to get private school and only

25:18

let it whatever. That's a different story, but

25:20

this is an organization that is getting government

25:23

funds . And so they're saying, if you want

25:25

to do that, you cannot

25:28

tell LGBTQ parents that

25:30

they can't apply to adopt. They're

25:32

not telling them you have to

25:34

screen and match LGBTQ

25:37

parents. They're just telling them, you have

25:39

to let LGBTQ parents apply

25:41

to be adoptive or foster parents in

25:43

your system. And what happened during

25:45

oral arguments was the

25:47

attorneys for CSS turned it into,

25:50

this is an affront to our religious

25:53

liberties, which is ridiculous.

25:56

Like I said, this is not a case where if the city of

25:58

Philadelphia wins, they're going to start mandating

26:00

that CSS chooses

26:02

gay parents. This is simply

26:05

a matter of discriminatory practices.

26:07

It's not a matter of instructing

26:09

CSS to do anything and

26:11

using public money, right? They're doing it

26:14

in our name essentially. And they're

26:16

using public money to say what

26:18

was really, really repulsive. Listening

26:20

to oral arguments was listening

26:22

to the attorneys for CSS, say things

26:24

like it goes against our religion

26:27

to acknowledge. This is not a direct

26:29

quote. You know , it goes against our religion

26:31

to allow a gay person to parent,

26:34

or it goes against our moral it's like we don't

26:36

live in it's 2020.

26:39

That is ridiculous. And the other issue that

26:41

kept coming up over and over again is this issue

26:43

of what kind of precedent this case

26:46

could set. And that is where

26:48

again, we return to our friend,

26:50

Amy, who there were a

26:52

lot of instances during the hearings

26:55

where the issue of interracial

26:57

marriage came up because discrimination

27:00

against race is met with

27:02

a strict scrutiny standard, which is the highest

27:05

level of scrutiny by the court. If

27:08

a case comes before the court, and it's about racial

27:10

discrimination, they have to apply the strictest

27:12

level of analysis

27:15

to that case. If that discriminatory

27:17

practice wants to stand, which is basically to say

27:20

that it is next to impossible. That's

27:22

how we got interracial marriage

27:24

and et cetera. So they kept saying,

27:27

well, this is distinct from interracial marriage

27:29

because this is about religious Liberty and

27:32

LGBTQ rights. It's different

27:35

as if to say that the rights

27:37

of LGBTQ parents are

27:39

somehow less intrinsic

27:41

and more inalienable than

27:43

other forms of discrimination. And

27:46

I think what's really important to remember. There is even

27:48

if something like sexuality or gender, which

27:50

is legally not a strict scrutiny

27:53

application, there's still a level

27:55

of scrutiny applied, right? Just

27:57

because something isn't race discrimination

28:00

doesn't mean that you get to decide

28:02

this discrimination is fine because it's not right.

28:05

That's not how this works. They have to have

28:07

a compelling government interest. And it

28:09

was sort of my arm who said during oral arguments,

28:12

this is about the dignity of these families.

28:14

There's a horrific indignity and stigma

28:16

to being told that your sexuality

28:19

who you're married to, who you love dictates

28:21

your right to parent. And I think

28:23

the other point is that we know statistically,

28:26

there are large numbers of LGBTQ

28:28

youth in foster care. And

28:30

so where you're also doing is you're denying them

28:33

and anybody else in foster care,

28:35

the right to a loving and

28:37

supportive family. And one

28:39

other thing that came up over and over and

28:41

in this case was that this particular agency

28:43

CSS had not discriminated

28:46

against any LGBTQ family

28:48

specifically. They hadn't actually turned

28:51

one away. And I think it was

28:53

Briar who said it. But the thing about

28:56

that is if you

28:58

are an LGBTQ parent

29:00

and you're looking to adopt

29:02

or foster, are you going to go

29:05

to the agency that you know, is a validly

29:07

homophobic? No, of course you're not.

29:10

It doesn't make sense. Of course they have a discriminated

29:13

because who wouldn't try to adopt through an organization

29:15

that thinks that you're not a fit parent

29:18

because you're in a same-sex relationship. It's just not

29:20

going to happen. So the sample size is

29:23

kind of a moot point, to be honest. And also

29:25

we do have instances of other

29:27

religious foster care organizations turning

29:30

away, LGBTQ families, and

29:32

the way that CSS frames, the argument

29:34

was that, well, if you

29:36

really against us, then we'll have to stop

29:39

doing this sacred work that been

29:41

doing for forever and we'll shut

29:43

down and it will disadvantage children. And

29:46

again, it's like, no, you're

29:48

denying children, the right.

29:51

You aren't Oh , the money, right?

29:53

Like that's not your do if

29:55

you're not providing the services in

29:58

a way that is non-discriminatory,

30:01

we don't have to pay for you to describe it .

30:03

Right. And the other thing is this case is if

30:06

the court were to rule with CSS, this

30:08

would have, it seems like kind

30:10

of a wonky niche case because it's

30:13

foster care agency. It's the state of Philadelphia. It's

30:15

really, the precedent could be so

30:18

dangerous. First of all, I

30:20

think it's important to note that

30:22

religious foster care agencies

30:25

are incredibly prevalent

30:27

Catholic charities. It's

30:29

not at all uncommon

30:31

for a religious organization to be

30:34

the preeminent foster care agency in

30:36

a state and a region. It is an area

30:38

that is saturated with Christian

30:41

and religious organizations. And

30:43

that has impacts that are really wide ranging.

30:45

I mean, I've done research and reporting on how

30:48

do young people in foster care get access

30:50

to abortion and birth control. And if

30:52

they're in a religious group home, I mean, it's

30:54

difficult enough if they're not in

30:56

a religiously affiliated organization, if

30:59

they are it's insidious,

31:01

it's everything from the messaging on the

31:03

paperwork, to the pamphlets

31:05

to emails, they might get the religious

31:08

presence in these organizations is really, really

31:10

insidious for the people who operate

31:12

within them. But sort of like Catholic hospitals.

31:14

There are people who adopt and

31:17

foster young people through them who are not

31:19

religiously affiliated, but who do so because they are

31:21

the option where they live. And

31:23

that's another thing to bear. It thought it was

31:26

witty to bring up during the hearings where

31:28

she said, well, if we

31:30

side with the city of Philadelphia,

31:32

then if a Catholic hospital

31:34

that's getting government funds decides

31:37

to not provide abortion, then

31:40

there'll be able to say, no, you have to. Which first of

31:42

all,

31:42

First of all, yeah, no, exactly. That's a great idea.

31:45

Abortions are good Denison it's healthcare.

31:48

We should be able to require them to perform

31:50

abortions, but also that's completely

31:52

out of left field. That's something that Jason

31:54

Amani talked about on bin Lara this week, which is that her

31:56

oral arguments at Fulton, we're really going

31:59

to central . This is what she was here to do. She

32:01

was here to distinguish LGBTQ

32:03

rights from race discrimination and to be like,

32:05

don't worry, we're not coming for that. We're just coming

32:07

for as if those two things are

32:10

inseparable. I mean, we know that all of these rights are connected.

32:13

We know that this isn't one identity of someone.

32:15

She did that. And then abortion,

32:18

which came out of nowhere. It's like this case isn't about

32:20

abortion. So she did

32:22

that.

32:22

Do you not know everything's about abortion?

32:26

Everything in my life lately

32:29

. And again, the precedent that this case

32:31

could set foster care agencies around the country

32:34

would have the ability to discriminate. And

32:36

it was Briar who made the point that this inevitably

32:39

will not only be about discriminating against

32:41

LGBTQ families as it bend isn't bad enough,

32:43

but it will be about one religious organization

32:46

discriminating against another religious organization.

32:48

We've seen that in Mani interviewed one

32:50

of the plaintiffs in the case who was discriminated

32:52

against by a Christian Foster care agency for being

32:55

Catholic, which in their view was the wrong

32:57

type of Christian. So this isn't, again,

33:00

if this was just about this one issue

33:02

of LGBTQ parents, being able to adopt

33:04

through a Christian Foster care agency , that would be enough

33:06

for it to matter. It is about

33:09

a lot more though, and it

33:11

will set the precedent for other

33:13

government funded organizations. It will allow

33:16

other organizations, substance abuse, treatment,

33:18

healthcare , all of that, that get government subsidies

33:21

to discriminate and

33:23

point to this case as their POS

33:25

to do it. So again,

33:27

not a case you want in front of a six week

33:29

conservative majority. I think the

33:31

oral arguments at this case were slightly more

33:33

worrying because Thomas

33:36

Alito, Barrett, Gorsich

33:38

and Kavanaugh were all pretty firmly there

33:41

. Questions indicated that they felt a very specific

33:43

way about it.

33:45

I'm worried about what this court

33:47

is going to do around religious

33:49

freedom. And we had some

33:51

of those good rulings last term

33:53

that I think are just waiting to have

33:56

big religious Liberty arguments,

33:58

carved big exceptions into them. And

34:00

I think we're going to see a lot of things like

34:02

that coming.

34:03

Yeah. I think it's important to note that, especially

34:05

with the makeup of this court, when we talk

34:07

about religious Liberty, we're talking

34:10

about a specific religion. We're

34:12

talking about white Christianity that

34:14

needs to be said, we're not talking about religious Liberty.

34:16

We're talking about a group of people who were nominated

34:19

by a president who banned Muslims from

34:21

coming into the country. So this is not a matter

34:24

of religious Liberty. This is a matter of

34:26

white supremacy, as far as I'm concerned.

34:29

I mean, there are a lot of LGBTQ parents

34:31

from shore are practicing Christians. Like these are not

34:34

mutually exclusive things.

34:36

It's very less about protecting your individual

34:38

religious Liberty than someone else being

34:40

able to use it against

34:43

Exactly. Nobody is imposing

34:45

anything on CSS by saying,

34:47

Hey, you just can't do this one thing. You

34:49

just can't tell gay people. They can't be foster

34:52

parents. There's very little being asked

34:54

of them except to be decent at the most

34:56

basic level. And to pit

34:58

this as religious rights versus

35:01

LGBTQ rights is just so

35:03

transparently tailored

35:05

to appeal to this chord

35:07

. Okay.

35:09

A small sampling of what

35:11

has already come up in front of the court.

35:14

So let's not end on a bummer. Let's

35:16

talk about what can we do? What actions

35:18

can people take right now to fight

35:20

back on all of this stuff.

35:23

I mean, the court is both a

35:25

government body that I think we have some

35:27

say in , because I think a lot of times

35:29

people feel like the court and judges

35:31

are removed from public input

35:33

because they're appointed and that's true. It does feel

35:36

sort of out of, and that's a hard

35:38

thing to grapple with, I think, but I think

35:40

it's important to remember that the people that

35:42

we elect have a say.

35:44

And so if you want to have a say in

35:47

who gets not only to the Supreme court,

35:49

but we really, really have to think about the

35:51

lower courts because a ruling from

35:54

a lower court judge, or that

35:56

might not hold the binding precedent that

35:58

a SCOTUS decision does. But these

36:00

don't just matter because these are the judges that they

36:02

play a role in. What goes up to the Supreme court. They play

36:04

a role in what's allowed at the state level.

36:06

This is not just about these nine

36:09

people. And that's why local elections

36:11

matter. That's why your elections

36:13

for your state house reps matter.

36:16

She sounds overwrought but

36:18

vote . And it's tough to

36:20

be like, this is what you can do cause you can't go out and canvas

36:23

against Amy Coney Barrett. I always

36:25

take some comfort in educating

36:27

people, which I'm probably really annoying,

36:29

but I think educating people on the impact

36:31

of the courts and the

36:33

impact that elections have on the courts. And

36:35

we don't need to really look further

36:38

than the last four years to see what an election

36:40

can do to the court. It is in many

36:42

ways of public forum, these plaintiffs

36:44

in the Fulton case, their families

36:46

who had their rights trampled

36:48

on by a group in the name of religious Liberty,

36:51

right? They're just regular families

36:53

who were like, Hey, what the hell

36:55

with all the darkness of these cases? I think that's

36:58

something to remember these cases

37:00

aren't about politicians or,

37:02

I mean, some of them are, you know , what we're seeing going

37:04

on right now, but they're about the rights of regular

37:06

people. And that means that you don't

37:08

have to be in the Senate to

37:10

take part in one, not advocating

37:12

for people to let their

37:15

cases in the Supreme court, but we can be active

37:17

members of our court system,

37:20

whether it's through voting or staying informed or

37:23

being advocates in our community for why

37:25

the courts matter. I think they're all

37:27

really important things to do. And also

37:29

to remember that it's a brand that's balanced

37:31

by Congress. So

37:33

we might not be able to say who gets

37:36

appointed, but we might have a say in the legislation

37:38

that is being decided the 15 week

37:40

ban out of Mississippi, that Danny ban out of

37:43

Kentucky that's legislation that elected

37:45

officials decided on. And

37:48

those elected officials were just that elected.

37:50

So there are things we can do.

37:53

It feels so unsatisfying in the court

37:56

realm , but there is one thing that we know will

37:58

be coming up is we can expect

38:00

that Mitch McConnell is going to try

38:02

and put through more Trump appointed judges

38:05

in the lame duck, keep your eye out

38:07

and make sure that you are calling your Congress

38:09

people to stop more appointments

38:12

of lower court judges during this lame

38:14

duck session, because they will, I'm

38:16

sure be terrible.

38:18

Yeah. They all are. And that's the thing

38:20

is even if you have a Senator

38:22

who you think is liberal,

38:25

yeah. They didn't get all those judges through on Mitch McConnell

38:27

alone. We see that there are some conservatives

38:30

who are they Teeter a little

38:32

bit. They're like, Oh, well, you know, I

38:34

didn't vote for him or whatever, but your center

38:37

left senators have to hear it. Don't

38:40

think that because you live in a blue state

38:42

or make it clear that,

38:44

and again, I think it's hard to make the lower court

38:46

sexy. SCOTUS is very, I

38:48

mean, it's not sexy now, but

38:51

the idea of SCOTUS is very sexy Supreme

38:54

court. And it's like the ninth circuit

38:56

doesn't like instill excitement. I think a lot

38:58

of people when they hear that term, these things really matter.

39:01

So yeah, I think keep the pressure

39:03

on your local officials to remember

39:06

who they work for.

39:07

Well, Caroline, thank you so much for being here

39:09

today and for talking to us,

39:11

Thank you for having me. It was a pleasure.

39:15

Okay, everybody. I hope you enjoyed my conversation

39:17

with Caroline. It was great to talk to

39:19

her. And with

39:21

that, we'll be back in two weeks

39:23

with more RevPro stuff, unless

39:25

we do a special one before then

39:28

talking about what the reproach community

39:30

wants to see out of a Biden Harrison administration.

39:33

I'm going to try and make that happen, but it might not happen

39:35

until a little later, but it is on

39:37

my schedule. If you have any questions

39:39

or any topics you'd like us to cover,

39:41

always feel free to reach out. The best way

39:43

to get to me is email [email protected].

39:47

You can always reach out to us on social

39:50

and that's, reprots fight back at Facebook

39:52

and Twitter and reprots FB on

39:54

Instagram. And with that, I will see

39:56

y'all

40:00

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40:03

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