We look at the final orders list before summer break, and then continue to work through last month's opinions, this time with an extended analysis of two decisions about children and culture wars -- Mahmoud v. Taylor (religious objections to LGBTQ+-inclusive books) and Free Speech Coalition v. Paxton (age verification for accessing online pornography).
We look at the final orders list before summer break, and then continue to work through last month's opinions, this time with an extended analysis of two decisions about children and culture wars -- Mahmoud v. Taylor (religious objections to LGBTQ+-inclusive books) and Free Speech Coalition v. Paxton (age verification for accessing online pornography).
[Divided Argument theme]
Will: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. So, Will, this episode, I think we're going to give people a little bit more of what they want, or at least what some people want, which is discussion of some hot button cases.
Will: Is that what people want?
Dan: I don't know. It's what some people want and it's what some people don't want. Obviously, if you listen to the show regularly, you must not want that 100% of the time, because we don't give you that 100% of the time or even really 50% of the time.
Will: Yeah.
Dan: But we have to do it more than 0% of the time. We can't really call ourselves a Supreme Court podcast if we don't talk about the cases that get the most attention from the wider world.
Will: But it's July. We're taking our time. We're circling back to the cases we think need talking about rather than trying to provide eight-minute hot takes all in one end of June episode. So, here we go.
Dan: Yeah. And actually, reading them, I mean, these people are always asking me, “Why do you take all this time doing this podcast? What's in it for you?” And there's a lot of benefits, but it does actually make me read these opinions carefully. And when there's a crush of 20 opinions at the end, I mean, sometimes you don't get around to reading them all.
Will: Speak for yourself.
Dan: [laughs] This stuff is directly downloaded into your brain. I think you've got supremecourt.gov hardwired by Elon Musk designed Neuralink implant. But some of us have to do the hard work of actually reading these, and it takes a while.
Will: I would enjoy that download. All right, where should we start?
Dan: Well, I was planning to make this very brisk because when we planned this, you had a hard stop at the end of our recording session. And so, I had a plan to approach this episode with Isgurian efficiency. But you may have thrown a wrench in things. I'm still going to try to do it, because I think it might be good for everybody. So, how about we do- Here's the plan. Two pieces of feedback, some stuff about the orders list that came out. I think this is the final orders list, the mop up orders list and two merits opinions.
Will: All right. Sounds great if true.
Dan: Is that overly ambitious?
Will: Yep.
Dan: Okay. All right. First follow up, friend of the show, Addison Parenteau wrote in as a Marine Corps veteran. Marine Corps, sorry, that was a LabCorp level misspeaking. As a Marine Corps veteran, he wanted to give us a little bit more context on generals. He notes that every service branch has four flag officer ranks. They're called generals in other than in the Navy and Coast Guard, which call them admirals. But it's not particularly helpful to our queries about Attorneys General and Solicitors General because he does say you do refer to those folks as general. You address the Brigadier General as General, but we don't see people saying brigadier as General, so that doesn't help. He does note though that the United States Surgeon General holds a Vice Admiral's rank.
And that's interesting because I think of Surgeon General as like the most analogous position to Solicitor General. It seems very similar. It's like profession General.
Will: Well, the Surgeon General is the top-ranking doctor in the federal government and the Attorney General is the top-ranking lawyer in the federal government. So, it's really the Attorney General is the equivalent.
Dan: Well, okay, maybe there's an orthopedist general or something underneath the Surgeon General. I'm not sure. It struck me as an interesting data point.
Will: But I remembered that the Surgeon General holds a military rank. So, I think another solution is if we just have a rule that we commission the Solicitor General as a Vice Admiral and then call them Admiral Sauer, then I'll be totally satisfied.
Dan: Does that mean that if the Surgeon General runs into a sailor, they can just give orders? [crosstalk]
Will: I think there’s a chain of command, isn't there?
Dan: Yeah. Well, I guess like who is beneath the Surgeon General? Is it just a bunch of other doctors?
Will: I thought it was the Uniform Public Service Health Corps.
Dan: How'd you know that?
Will: How do you know that?
Dan: I've never heard that sequence of words before.
Will: Okay, well, it might be wrong.
Dan: I mean, no, it seems quite plausible. When did that come up for you?
Will: One of my best friends in college is a doctor, so I try to follow.
Dan: Is that person in that string of words you just said.
Will: Not one.
Dan: But was it one point perhaps.
Will: They can remain nameless to protect their identity.
Dan: Well, I'm not asking for a name. I'm just trying to figure out whether you have direct exposure to this thing. Okay, so going briskly that was one piece of follow up. I think you had another one from friend of the show, Don Burke.
Will: Yeah, longtime friend of the show Don Burke wrote in about our Gutierrez episode “First off, great episode. This is exactly what I signed up for.” Thank you. “One reaction in Gutierrez isn't the real puzzle how the prosecutors had appellate standing to challenge the district court's declaratory judgment in the Fifth Circuit. After all, if they're correct that the district court's remedy was useless and didn't accomplish anything, then what's their grievance that the Fifth Circuit is supposed to remedy?” This is a very good question.
Dan: Yeah. That is a really good question, right? That does seem like in deep tension. But it is a declaratory judgment running against them as the name parties, is that correct?
Will: I mean, yes, they are the name party, but if they are right, for instance, that this declaratory judgment will in no way affect their behavior, then it's not clear why they are complaining about it. I think the truth is that will affect their behavior, which is why they're appealing it.
Dan: Yeah. Wow. That's a really good question, and I don't think we have great answers to that.
Will: It reminds me a little bit of the fight about signing the insurance forms back in the Little Sisters of the Poor referral litigation. There were all these cases where the federal government really wanted to make the nuns sign this piece of paper saying that somebody else would provide health insurance. And they were like, “No, no, no. You can't make us sign a piece of paper because it violates our religion.” And the government was like, “Well, there's no burden on you for signing the paper, so you really got to sign it.” And there was always this sort of funny on both sides, this funny circularity, like, “If the paper doesn't matter, why do they have to sign it?”
Dan: [laughs] Yeah, that's a good point.
Will: And I feel a little bit like that here.
Dan: Yeah, no, I like that. Okay, briskness through the feedback section onto orders list stuff.
Will: Wait, can I take 20 seconds of self-promotion?
Dan: Okay. Promote away.
Will: Just to say in the New York Times today, July 3rd, as we're recording this, but it'll be a couple days in the past by the time this episode comes out I have an exchange in the New York Times opinion section with Kate Shaw and Steve Vladeck about the Supreme Court's term. They had us do this last term, too, and they got us together to talk about how the court was doing. I gave the court a 180 or an A minus on the Chicago Grading Scale. And Kate and Steve gave it a much lower grade. And you can go read it. “There's Just Too Much Lawlessness': Three Legal Experts on an Embattled Supreme Court.”
Dan: In fairness, Steve gave the court an incomplete, right?
Will: Yeah. I think that's worse than an A minus though.
Dan: Well, I mean, what if you turn in your work and then the work is really good and you get an A plus?
Will: I am willing to bet the entire podcast that at the end of the summer Steve does not give them a grade higher than an A minus.
Dan: What would it mean to bet the entire podcast? What would happen if. What are the stakes? I don't quite understand the stakes there.
Will: I don't know. Steve would take over my seat, and you podcast with him from now on.
Dan: What if I took the bet and lost? Will give the seat to Steve Sachs?
Will: No, you're my first choice. Go on. [laughs]
Dan: All right. So, I could make the bet without actually wagering anything.
Will: If you lose, you have to do twice as many opposites.
Dan: Do you want to do twice as many episodes?
Will: Sure. Yeah.
Dan: Okay.
Will: I'm always on you to record.
Dan: Yeah. I don't know, you go on vacations and stuff.
Will: Yeah. And then I record with bad wi-fi.
Dan: Yeah, that's true.
Will: Orders list.
Dan: Okay. Orders list. Various things. One thing actually, from the previous orders list, or at least from a miscellaneous order from Tuesday, July 1st. Whereas the orders list we're about to talk about is from Thursday, July 3rd, which is, I think, friend of the show, at least friend of mine, Roman Martinez was invited to brief and argue a case as amicus curiae. So, this is when both sides of a case agree with the outcome, agree that the judgment below is wrong, the court has to appoint somebody else to come in and say the decision below was correct. That case is National Republican Senatorial Committee v. Federal Election Commission.
Will: Oh, wow.
Dan: Which is about the constitutionality of restrictions that political parties can spend on elections. That law was upheld by the Sixth Circuit. The US Solicitor General, John Sauer, has come in and agreed that the law is unconstitutional. The National Republican Senatorial Committee, once the law struck down as unconstitutional. So, Roman is going to come in and defend it. And I think that is a very good choice. He's someone who I'd like to say is on the younger side because he's roughly my age. We clerked the same term, but has come on as, I think, really one of the top advocates out there. He argued the relentless case, which is one of the companions to Loper Bright. He was involved in a little kerfuffle earlier this term where--[crosstalk]
Will: With Lisa Blatt.
Dan: He was accused of being a liar, which I don't believe he is. We don't need to get into that further. So, congrats to Roman. I will look forward to seeing his argument, which I imagine will be excellent. It's interesting because I think Roman, I don't think he's an ideologue, but he's someone who's kind of a conservative argued the relentless, clerked for the Chief Justice, but is being invited in to defend a judgment that probably appeals more to the left side of the bench. And I think that's probably good in the sense that he's going to be able to very well equipped to make whatever arguments are out there that might persuade a couple conservative Justices that are necessary.
Will: Let's see. And these assignments are usually made by the circuit Justice for the circuit, is that right?
Dan: That is correct. Although here normally they're often given to former clerks of the Justice of the circuit Justice.
Will: Well, Roman-- crosstalk]
Dan: Yeah. Roman is a former clerk for the Chief Justice. Is Justice Kavanaugh the circuit Justice for the Sixth Circuit?
Will: He is. And Roman clerked for Judge Kavanaugh the DC circuit.
Dan: There you go.
Will: Interesting, because I think there was a time when these assignments were always given to people as their first argument. John Roberts got his first argument this way back when he was a young man. But in some recent cases they've instead gone to more experienced appellate practitioner and Roman is certainly more in that category.
Dan: Yeah, that's interesting. There was a little while where the practice of giving these to former clerks had gotten criticized.
Will: Yes.
Dan: I think that was a piece by Kate Shaw who said, “Look, these are all basically going to qualified people, but they're going to cronies in the sense that they're kind of patronage going to the Justice as former clerks.” And I feel like there was a few examples after that where they didn't do that. But basically, we seem to be at the status quo ante which I can live with. I can see why it seems a little bit distasteful. On the other hand, the Justices are very well equipped to know who is going to be able to make an effective argument. And I think the most important thing is that they get a good argument.
I worked on one of these amicus invitations in a case called Millbrook where my former boss, former Alito clerk Jeff Bucholtz, was called in to defend the judgment. And I thought we did a very good job. We didn't prevail in that case, but I thought we ably discharged our responsibilities, as the court likes to say. And there are some examples of folks winning these.
Will: Yeah. Although most of the examples are Adam Mortara, aren't they?
Dan: Evan Young, I think won one.
Will: That's true. I was just going to say, I think I remember reading also that Roman has one of the highest win rates of some of the current advocates. He doesn't have as many arguments as Lisa Blatt does, but he has a very impressive win rate. Especially--
Dan: Lisa has 95%-win rate or something, right?
Will: Yeah, it's been slipping. It might be only 90 now.
Dan: I don't put a ton of stock in those stats.
Will: No, but I assume clients do. And Roman’s almost certainly going to lose this case, which makes it all the more impressive. He's willing to take on.
Dan: It doesn't count as a loss though, right? [Will laughs] – lose, you're just the amicus.
Will: Right. And I'm saying that not just because the amicus usually loses, but because in this case, the court is obviously going to strike down a campaign finance law that at this point, even the centrist election law professors think should be struck down. But we'll see if I'm wrong about that he will go down in history.
Dan: He will burnish his reputation. Okay, briskness, let's keep going. Let's go to the July 3rd orders list. So, we already have what looks to be potential marquee cases for next term, the court granted a couple of cases that I think had been being held for the Skrmetti case.
Will: The trans sports cases.
Dan: Yeah. These are cases about state bans on participation in youth athletics by transgender student athletes.
Will: These couldn't be just GVR'd. So, these are cases where the lower courts, the Ninth Circuit and the Fourth Circuit, I guess, struck down state laws saying that transgender athletes have to compete in the sports consistent of their sex assigned at birth rather than their currently identified gender. And why couldn't these just be Skrmetti GVRs? I guess it's because Skrmetti didn't end up taking a position on whether transgender or status is suspect class.
Dan: Yeah. So, having spent I'd say about 45 seconds looking at these and thinking about them, my instinctual answer is that these are more obviously laws that directly classify on the basis of transgender status, and so Skrmetti would not resolve it. But that's with the caveat that I have not super deeply familiar with these cases.
Will: Yep.
Dan: So, we will see. But they're both cases where the state lost. So, the grants, if the case is being granted and then Letter of Skrmetti came out, I'd rather be the state than the plaintiffs in those cases.
Will: I think we already know with 70% confidence what the most controversial thing the Supreme Court is going to do in June of 2026 is. 30% reserved for, if Donald Trump shoots somebody on Fifth Avenue or assassinates--
Dan: So, you're saying these are the 70% most likely.
Will: Yeah, the Supreme Court is going to rule in favor of the state. The Supreme Court commentariat is going to lose its mind.
Dan: Yeah, I guess I wouldn't assign 70%. Because I mean, a lot could be granted between now and then.
Will: There's a 30% chance of something overtaking it.
Dan: I'd say it's 50/50, honestly.
Will: Okay.
Dan: These are obviously going to be big. These are going to be top three or four cases for the term.
Will: I would take 50/50 odds on whether these are going to be the most hot button case at the end of next term.
Dan: Okay. Well, this is another one of those situations where we make a prediction. Our predictions diverge a little bit. Although, I'm covering myself because I'm not saying they won't be. I'm just saying there's a reasonably good chance that they won't be. Just because I feel like the biggest cases from any given term are not always ones that are identified at the end of the prior term.
Will: No, that's true.
Dan: So, listeners, please make a little calendar note for yourselves to circle back to this exactly one year hence and tell us how we did on this regard.
Will: I thought you were going to point out the cert grant in New Jersey Transit Corporation v. Colt.
Dan: That's your department.
Will: Well, the question is it New Jersey's Department or not? The question is, “Whether the New Jersey Transit Corporation is an arm of the state of New Jersey for interstate sovereign unity purposes.” I may have more to say about this in the next couple months, so stay tuned.
Dan: Okay. Well, I will await your thoughts. I feel like this is a core Divided Argument order. This is the stuff. Do you think any other podcasts will talk about this? The fact that the court in an ERISA case, everyone's favorite incredibly complicated statute about pensions and retirement plans and stuff like that.
Will: We are starting a separate ERISA channel Divided Argument, right?
Dan: Yeah. It'll have about one episode every three years, but those people who really want to be in can do that. So, the court granted this case M & K Employee Solutions, v. Trustees of the IAM Pension on June 30th. And this is one of those cases where the court granted and then wrote the question it wanted addressed. And then four days later or three days later on July 3rd, the court says, “The order granting the petition for a writ of certiorari is amended as follows.”
Will: Wait, can I read both these?
Dan: Yeah. They're a little hard to follow in this format, but I think you should.
Will: All right. On June 30th the court order said, “Petition granted limited the following question. Whether 29 U.S.C. § 1391’s instruction to compute withdrawal liability ‘as of the end of the plan year’ requires the plan to base the computation on the actuarial assumptions to which its actuary subscribed at the end of the year, or allows the plan to use different actuarial assumptions that were adopted after the end of year.” Then on July 3, we have the second order.
“The order granting the petition for a writ of certiorari is amended as follows. The petition for a writ of certiorari is granted limited to the following question: Whether 29 U. S. C. §1391’s instruction to compute withdrawal liability ‘as of the end of the plan year’ requires the plan to base the computation on the actuarial assumptions most recently adopted before the end of the year, or allows the plan to use different actuarial assumptions that were adopted after, but based on information available as of, the end of the year.”
So obviously, those are radically different. If you couldn't follow along, the court added eight words, seven words in a positive phrase of the last sentence, but based on information available as of to the QP.
Dan: Look, it changed subscribed to, right? It's subscribed to most recently adopted. Subscribed at the end of the year to most recently adopted before the end of the year.
Will: Yes. Okay.
Dan: And then added that positive phrase.
Will: Yes, good. Subscribed at to what happened before. So, I don't understand this at all.
Dan: Yeah. I think it would take me, what do you think, two hours to get up to speed on this case enough to be able to explain the difference?
Will: Depends on who writes the briefs. But it's interesting. How do you think this happened? Who do you think noticed? I think the parties.
Dan: I mean, on the docket, there's nothing reflected between June 30th and July 3rd. So, no one filed kind of a letter, but it's possible that a party contacted the clerk's office and just said, “Hey, just so you know, the court rewrote the QP. It actually introduced this error.”
Will: Yeah, that's my guess.
Dan: Yeah.
Will: A law clerk spotted some commentary on ERISA Twitter that alerted them this problem.
Dan: But is there such Twitter?
Will: ERISA Twitter? You can only get access to it if you subscribe to Divided Argument, ERISA Edition.
Dan: All right. I don't even subscribe to that edition, so I guess I don't have access to it. We've mentioned once or twice over the years this whole practice of rewriting the QP. And how does that happen? My sense is that it's not a super rigorous process. Maybe one Justice kind of suggests it. Maybe that's delegated to the Chief sometimes when there's some discussion at conference. But I guess that can, if the court is freelancing on these QPs, they can screw it up.
Will: Yeah. I assume that it's gotten more rigorous. They added this, now it's like a decade old, this sort of relist process where they decide to grant the case, but they relist it one more time to fly spec the case for vehicle problems.
Dan: It seems like it's had no positive impact. [Will laughs] They still dig cases all the time.
Will: Yeah, but now they dig them because the parties change their position or because the Justices get confused. I mean, well, who knows? Who knows what the base rate is?
Dan: A case like LabCorp, where there was this confusion about which order that was being appealed from maybe that's something that could have been figured out a little earlier. I don't know.
Will: Yeah, but it could be they at least get some chance to fly spec these. But given the, I don't know how many law clerks are ERISA experts. So, I don't know even if you circulated like this, rewritten ERISA QP to 32 randomly selected brilliant law students, how good of a job would they do at spotting this problem? Somebody spotted it, so that's good.
Dan: One last orders list thing kind of interesting. And this is a short one. It is a one and one third page statement respecting denial by Justice Alito, with whom Justice Thomas joins. And about this case involving Montana's Parental Consent for Abortion Act, which requires physicians to obtain consent from parents before performing an abortion on a minor. The court below the Supreme Court of Montana had concluded this law is inconsistent with Montana's state constitution. But there's a dispute in the case about whether that conflicts with federal constitutional rights of parents. And the state came in and is seeking review of the state court's decision based on that federal constitutional. Alleged federal constitutional conflict. And Justice Alito says, “Because of the way this case was litigated below, it provides a poor vehicle for deciding that question. It is therefore especially important that the denial review is not read by interested parties or other courts as a rejection of the argument that the petition asks us to decide.”
So, we'll say maybe that issue will reemerge if it is litigated better in the courts below. And the order doesn't really specify the vehicle problems, but apparently there are some vehicle problems.
Will: Well, I take it the vehicle problem is the state of Montana did not make the constitutional argument that Justice Alito would like to agree with.
Dan: So, it seems.
Will: But I'm sure somebody will.
Dan: All right.
Will: All right. So, speaking of the constitutional rights of parents.
Dan: Yes. And the interest in protecting the children, which is relevant to the grants we just mentioned a second ago, the transgender grants. So, athletes grants. Two other merits cases that implicate the children. Can I just say something controversial before we get into these?
Will: Always.
Dan: Possibly cancel worthy, which is that I think these cases are genuinely hard and present difficult issues.
Will: I think that will get you canceled on some corners.
Dan: Yeah, but that's okay. I said it. It doesn't need to be edited out. So, two cases which one should we discuss first?
Will: Mahmoud v. Taylor.
Dan: Okay. That was my instinct as well, but just wanted to see whether you got to the same place without prompting from me. I think this one is maybe slightly bigger, slightly more interesting.
Will: Yeah, I think so.
Dan: Okay.
Will: So, the Montgomery County Board of Education has apparently introduced a variety of LGBTQ+ inclusive picture books, children's books, into the curriculum, several of which are discussed in detail and even excerpted in the appendix of Justice Alito's opinion. But which, in general, normalize gay marriage and transgender things. [laughs]
Dan: That was a weird way to put it.
Will: How do you put it?
Dan: I don't know. Perhaps instill acceptance of children pursuing gender identity.
Will: Yeah. I mean, I will say even how to discuss these issues is something that comes up and something the opinions do differently, as I'm sure we'll talk about. One of the books is Born Ready: The True Story of a Boy Named Penelope, and so we'll talk about that. Anyway, there are some religious parents, including several Muslim parents, a Christian orthodox parent, another Christian parent, who view the way these materials are going to be taught to their children as a significant burden on their religious exercise because it will make it harder for them to teach their children, gay marriage is not marriage, and people have the sex that they are assigned at birth. And so, they objected.
And I think there's some back and forth, there's some confusion about exactly what the school board's going to do, which I'm sure we'll also get to. But as the court takes the case, there is a plan to use these texts as part of an affirmatively inclusive education on LGBTQ+ issues and not to allow parents to have an excused opt out. The board's position is, “Of course, you don't have to send your kids to school that day, but it's not an excused absence.” And also, not to tell parents what days these things might come up. So, in practice, it would be hard to just not send your kid to school that day. And that constellation of facts, the petitioners argue, violates their free exercise right to raise their children in accordance with their religions.
Dan: Yeah. And I'll just say at the outset, those facts make this case a very attractive vehicle for the plaintiffs. And particularly the fact that the school board initially allows notification and opt out, and then it says, “Actually, we can't do that anymore.”
Will: Yes. So, I also should confess error and apologize right now before you do it to me. I think when we talked about this case before it came down, I think I said it was going to be unanimous or maybe 8-1. I was wrong. It's 6-3. It's the usual 6-3.
Dan: Remind me why you thought that.
Will: Well, from oral argument, I thought there was enough discussion around the kind of, “Why can't the county at least tell the parents when this is happening? Why can't the county at least tell parents and give them an opt out?” I thought we might see the court try to compromise on a narrow look, at a minimum, you should tell the parents what's going on opinion. And then I thought the Justices who dissent here might be content to join such an opinion, and the Justices in the majority might be content to have such an opinion. I was wrong.
Dan: Yeah. This case ended up tripping the wires around contentious social issues that arrive at the court, which, by the way, are the cases I enjoy talking about the least here on this show.
Will: Yeah.
Dan: I don't know, because I think a lot of it is, how do you feel about these underlying hot button social issues that's obviously part of the case. It's hard not to talk about it. And I just don't find that as interesting on a podcast that's about the law to talk about. And I don't know if I have any comparative expertise on talking about those underlying social issues.
Will: Right. Well, the Supreme Court is not supposed to just sit as the school board of Montgomery County, even though I think several of the Justices may live in Montgomery County. So, at least in theory, there should be some law here explaining why the Supreme Court's judgment about these books, controls over the elected people.
Dan: Yeah. Although I think it's really inescapable. If you're assessing the burdens of a law, your underlying attitudes towards some of these questions is going to bleed in, no matter what.
Will: Okay, where should we start?
Dan: Well, this is a Free Exercise Clause case, but we're coming into this with, I'd say, a lot of uncertainty about the current state of free exercise doctrine.
Will: Yes. So, I think there is a free exercise case called Employment Division v. Smith, written by Justice Scalia in the early 1990s, saying, “In general, there is no free exercise objection to neutral laws of general applicability, like drug laws.” They're a drug law and somebody who wants to use peyote for a Native American religious ceremony. And Justice Scalia says, “Nope, if the law is sort of neutral and generally applicable, then we don't hear free exercise objections to it. To do otherwise would be unworkable and lead to anarchy and so on.”
This decision is very controversial on originalist grounds. My good friend and mentor Michael McConnell has sort of the leading line of scholarship arguing this is not the original understanding of the Free Exercise Clause, much of which the Court did not actually have before it when it first decided Smith, because the question was not even the way it was briefed at the time. And so, when Justice Scalia's opinion came out, the free exercise academia was like, “Whoa, what? Where did that come from?” But that's the rule. But at this point, 35 years later, I think it's fair to say Smith is quite controversial. Some large number of Justices on the Court have said it's not right, but they have not overturned it. In part, Justice Barrett famously had a concurring opinion a couple years ago in a case called Fulton where she said, “Smith is wrong but if not Smith, what are we going to do instead?” And then talked through that problem.
And I think Smith is now like Chevron was for the 10 years before its death. It's like technically a precedent. Everybody knows it's technically a precedent. Supreme Court has not ever ruled it, but the Supreme Court basically acts like it's already been overruled.
Dan: That's interesting.
Will: And that's where we are.
Dan: Like in the Tandon case. This is one of the COVID cases where the Court at least arguably adopted this most favored nation theory under the Free Exercise Clause. The idea that if the state is doing something that ends up imposing burdens on religion. It has to its problem if it doesn't impose the same burdens on similar secular activity.
Will: What this boils down to in its strongest form is if you have any exception to the law, it is no longer a neutral law of general applicability. And so, Smith doesn't apply anymore.
Dan: Which is the out that Fulton took to avoid Smith.
Will: Yeah. And all the COVID church cases take this route. But almost every law might be like this. Like even the murder laws, they have exceptions for self-defense. And so, does that mean that actually you do need to show that you shouldn't be allowed to have a religiously motivated human sacrifice exception to the murder law? No. Probably satisfy strict scrutiny, but still- So that's part of what I mean in saying they've been chipping away at it. Here the court has a different route, which is another precedent that existed before Smith and that Smith frankly implausibly distinguished. And so now the turnabout has come, which is a case called Yoder, Wisconsin v. Yoder, where the court held that members of the Old Order Amish do not have to comply with compulsory education laws.
Dan: Yeah, not categorically, but insofar as they applied beyond the eighth grade.
Will: Yes.
Dan: Right. Because the Amish in their religious community, the norm is after that point, the young people are supposed to come work out of the home, be taught the basic fundamentals they need to know to live life as traditional Amish people.
Will: Right. So, the court in this case opens with that as one of its core precedents and says there we concluded that formal high school education would place Amish children in an environment hostile to Amish beliefs, with pressure to conform to the styles, manners and ways of the peer group, and that it would interpose a serious barrier to integration of the Amish child into the Amish religious community. So that case is going to be central here. The one other precedent the court discusses, which is another really interesting retcon, doesn't do quite as much work in this case, is a case called West Virginia Board of Education v. Barnette, which is most famously thought of and taught as a free speech case about the right to be free from compelled speech. It's where the Jehovah's Witnesses did not want to have to say the Pledge of Allegiance when the court held, they didn't have to.
But what's interesting is the case was litigated at the time as both a free speech and free exercise case. But in earlier, a case that was litigated even more as a free exercise case Gobitis overturned in Barnette. And so here the Court just describes Barnette as a case that is about the First Amendment and in part that the asserted policy was, among other things, an unconstitutional denial of religious freedom which is funny because again, in law schools you would think of the among other thing, like free speech under the First Amendment, the way the case is mostly thought of today. Justice Alito is not wrong to say it's also a religious freedom case, but- =
Dan: It was a bit slippery.
Will: Well.
Dan: Yeah. So, I mean, a lot in this case is going to turn on use of precedent, and mostly about Yoder. I would say there's a big back and forth between the majority and the dissent by Justice Sotomayor about how to read that case and the majority's tack seems to basically say, like, “This is Yoder.”
Will: Yeah, I think that's right. There's a thesis about the Court that I identify most heavily with friend of the show, co-blogger on the blog Richard Re, that the Roberts Court is currently acting sort of like a conservative Warren Court. There's a lot of continuity to things the Court is doing now and the things the Warren Court and the early Burger Court were doing, only conservative. And he has a forthcoming forward in the Harvard Law Review along these lines. And I think this case might be like exhibit A. This is like Yoder is a late Warren Court, early Burger Court case. And this is just conservative. Yoder is the way Justice Alito described this anyway. Good for the Amish. It's good for the conservative sexual traditionalists today.
Dan: Yeah. And not to cut back on what I said earlier, which is that I do think this is a hard case with arguments that are compelling on both sides. I did think that the majority's use of precedent here was not fully persuasive in the sense that it does seem like there are some meaningful differences between the two laws at stake. That's not to say there aren't some meaningful similarities, but some differences as well. What did you think about that?
Will: Okay, so I don't know whether to start with thesis of precedent or to start with I don't quite know what the majority opinion holds. So, we can start there. I think one way to read the majority opinion is quite limited. And there's a passage of the majority opinion that sort of lends itself to that reading where they're saying, here we have several facts coming together. These are very young children. They are being taught in a way that borders on indoctrination. They're not just being exposed to these books, but there's a sort of plan in the education board to teach them that this is the right way to think about it and that the point of introducing this curriculum is to disrupt heteronormativity and stuff like that. So, a secular proselytizing. And the parents are not being given any opportunity to opt their kids out and not even be giving notice about when this will happen. Those kind of four things altogether.
If the case is about that, if the case is about those four things altogether, like the intentional proselytizing of a certain DEI ideology to young children without telling their parents or letting their parents take their children away from it, it seems pretty narrow. Maybe it's still not exactly Yoder, but it seems pretty narrow. On the other hand, the dissent describes this as opening the possibility to any exposure of the children of conservative parents to nonconservative ideas about sex is potentially forbidden now, which would be obviously a huge change in how schools work.
Dan: And this is the thing that is most compelling about the dissent, and to the extent that's a fair characterization and we can try to figure that out, and I am unsure, but I thought that's a very powerful argument in the sense that this is going to be potentially wildly disruptive if basically you have a version of the Heckler's veto for any subject matter that is in some way controversial.
Will: Yeah. Yes.
Dan: To some religion or another.
Will: So, I think the big question is, which conservative Warren court is this? So, one possibility is this is just conservative Yoder. The other possibility, which is what the dissent is hinting at more, is this is actually the conservative school prayer cases, like it used to be, the public schools all had Christian prayers and like a little bit of ceremonial deism just like, thrown into the textbooks. And people thought that was just a natural part of the curriculum. And then the Supreme Court stepped in and after several decades said, “No, we have to stop all that.” The fact that there are some people who don't want their children exposed to that at school means it can't happen at all. It's not just a little bit, but we get rid of a lot of it. In Lee v. Weisman, the court doesn't even allow a prayer at a graduation ceremony because people might feel compelled to participate or observe it.
The court's going to say there are people who think of secular liberalism as a kind of religion, as the new religion. If the court is really saying something like that, like LGBTQ inclusivity is a religion that has to be eliminated from our schools in the same way that conservatives were forced to eliminate Christianity in the 60s. That would be incredibly disruptive.
Dan: Yeah. Although obviously it's not saying that because you still have to have a religious objection on the other side.
Will: Yeah. But there will always be a religious objection they assign. And in the school prayer cases, of course, if nobody had standing, it wouldn't come up.
Dan: But I guess my point is that because religion gets special treatment, someone who has a secular, philosophical objection doesn't have standing.
Will: Yes. I think formally, of course, the Court is not grounding this in the establishment clause. But in terms of what is the Court saying of public schools? Is the Court saying of the public schools, “There are a small number of people like the Amish and we got to kind of let them make their own way?” Or is the Court saying, “No, there's something going on in the schools that shouldn't be going on in the schools, and we, the Supreme Court, are going to stop it, even though it's happened in a lot of the schools.” And that's not what the decision says on its face. But if that's what the decision goes, which of the dissent says is where it might go, that would be huge.
Dan: Yeah. And my guess is there's not consensus among the majority on that question.
Will: You might be right. There's a concurring opinion by Justice Thomas that I think leans a little more towards the broad reading and does suggest things were better back when schools taught only objective material like the three Rs and not sex ed. There might be some Justices who aren't willing to go that far, but I'm not sure. So, I think that's just a big question. And again, I think the case is read. You could read the case narrowly enough to say, “No,” as long as you have notice and opt out, that's fine. Although even notice and opt out is going to be more disruptive when we get to older kids.
Dan: And the question is notice and opt out for what? Do you have to have notice and opt out of everything that might remotely be controversial?
Will: Right. So, we were talking about this at the University of Chicago Faculty Roundtable lunch, and one of the immediate questions we had was evolution. Suppose you're a parent who has religious objections to some of the conventional views about evolution. Would you have a right to opt out? Does your opt out extend to the test? Can you opt out of the part of the test about evolution? Because these kids are young enough, there aren't tests. So, the opt out is about whether you attend that day and whether you get a tardy or something. But once you get to older kids who are being tested on material, I would hope the rule is something like you can still require people to learn and recite the material. You just can't require them to say that it's true. But we don't know.
Dan: So that would be bad, right? That's the danger. I mean, I think avoiding that result has always been the most attractive thing about the Smith rule.
Will: [laughs] Avoiding what? The possibility that people don't have to be taught evolution?
Dan: No, the anarchy of everyone wanting these exemptions.
Will: Yeah. Well, I think that's right. The one other attractive thing with the Smith rule is, as we talked about recently, I think formally there's a rule that all religions are treated alike and all religious beliefs are treated alike, even idiosyncratic weird ones. So, this case may also seem more sympathetic to some because this is a widespread religious belief that we know plenty of people have. And we might feel annoyed at the school for not indulging it.
Dan: Yeah. Along a cleavage between our divided society on a really important contested social issue.
Will: But what happens if somebody shows up and says, “I believe as a religious matter that there's no such thing as a plus symbol and that's just not how numbers add that they're added in the mind of the Almighty,” whatever. “And so, you need to warn me, anytime the teachers are going to tell the kids about plus because my kid can't hear about plus, it will destroy his belief in our weird non additive cult.” Formally, that person has to be given just as much shrift. Maybe there's a more compelling interest in saying plus than there is in talking about Penelope, but that seems potentially really unworkable.
Dan: Someone could have some religious argument going the other direction. I'm a kind of Pagan Wiccan and reject heteronormativity and any content that is provided that is consistent with promoting uniformity and gender identity or something is inconsistent with my religion.
Will: Yeah. So, one other radical way this could go, by the way, that's workable of a radical, is if the opt out is not just you don't have to go that day, but we will fully fund your education at the religious school of your choice. If you don't like the public schools, sort of like full school vouchers as a matter of constitutional right. I assume that would be a way out for the school, but that would essentially destroy the current public school system.
Dan: Would such a system eliminate all sorts of constitutional objections to what happens in public schools?
Will: I think so.
Dan: Could you then have say, “Okay, the state public schools are going to have Episcopalian prayers, but if you don't like it and go to your Catholic school with this money,” or does that not work?
Will: Ithink the Establishment Clause would be the hardest one to get around that way under current doctrine. All the Establishment Clause is being somewhat reframed under coercion. And of course, in Justice Thomas’s hands, all the school prayer cases would become free exercises at most. And then we have the Oklahoma school charter case. The court didn't decide. So maybe I was just going to say my sometime coauthor, Michael Stokes Paulsen, I think decades ago wrote an article arguing this, arguing that from the Court's decision in Lee v. Weisman, which is where they say that, “You can't have school prayer at graduation because that's coercive.” He said, “It actually logically follows from this that public schools are unconstitutional and you have to have a school vouchers for everybody as a matter of right, as a matter of coercion, instead of walking it through.”
So, I don't think that's where the court is going, although I bet Justice Alito would love to live in that world. But that would be one other way you could take this to a logical and workable conclusion.
Dan: I would too, because it would save me some money, but I think it would possibly be bad.
Will: Yeah, I guess this is the place we should confess our biases that all of our children, attend private school and not public school.
Dan: Well, my children attend Catholic school, so I'm maybe more likely to get the benefit of such a rule than you are. I assume that the Chicago Lab School subscribes to the woke ideology, religion.
Will: I will say a lot of the education described in this opinion is education I'm familiar with for my children. Although the lab schools are, because they are part of the University of Chicago, they are governed by the Kalven Report on the University of Chicago principles of institutional neutrality. Although there's been some evolution in how those are understood and applied to the school. So, the school used to have banners outside of the elementary school that said Black Lives Matter and then the Kalven Report police made them take them down.
Dan: Because it's an institutional endorsement of a particular idea?
Will: Correct. But how to translate that to the classroom, to the individual teacher, to the institution? It gets tricky. Obviously, it is harder to have institutional neutrality with respect to three-year-olds because you're still teaching them not to hit each other.
Dan: Yeah, I mean, I guess the question is neutrality as to what.
Will: Yes.
Dan: Right. I mean, there has to be neutral, no neutrality as to whether four plus four equals eight.
Will: That's true at the university as a whole. But as to the other things, it can get more complicated.
Dan: Is it sort of neutrality as to anything about which there's some reasonable room for disagreement?
Will: How you work out institutional neutrality? I mean, so again, these rules are developed in the context of the university, where it's more clearly like the department is the decision maker about who is doing work that's worthy of tenure, individual faculty members are the decision makers about, etc., etc. So, I don't know that there's total clarity about how you apply it to the K–12 context.
Dan: This is getting a little further afield, but would this forbid institutional position taking on whether the Holocaust was bad?
Will: Whether it was bad?
Dan: Yeah.
Will: Yeah, probably.
Dan: Whether it was bad to murder people? It's that blanket.
Will: I think so, yeah.
Dan: That's interesting.
Will: I mean, it is bad to murder people. Everybody knows that. But I don't think the institution necessarily has a position on.
Dan: Well, clearly not everybody knows that. That's why we need to guard against terrible things like that happening.
Will: I mean, it certainly forbids taking a position on whether or not there is a genocide in Israel and Palestine and how to feel about that [crosstalk]. And it is not always as carefully enforced as to things where nobody disagrees and therefore nobody cares. But the reason that you might forbid taking a position about genocide in general is because then you want to forbid taking a position about alleged genocides in particular.
Dan: Yeah. That’s interesting.
Will: And of course, some people believe that the climate change is a massive genocide of future generations, or that serving meat in the cafeteria is a genocide of another sort, and so on and so forth. Anyway, as we talked about, this is in theory, not a what should schools be like opinion. In theory, it's about what does the law require? Although I'm not sure the court's minding the difference too much.
Dan: Yeah.
Will: But the court says, “Look, in Yoder, we said that it was a severe burden on the Amish to have an education that had a significant threat of undermining their religion, and that is why we gave them an opt out. Smith preserved Yoder. Therefore, in this case, as long as we conclude there is a similarly severe burden, not the same exactly as in Yoder, but similarly severe, then this is also an exception to Smith, and so the school loses.”
Dan: Did you find it persuasive?
Will: As a matter of precedent? No, not particularly. I mean, one thing Smith said about Yoder was the reason Yoder is preserved, the court said, is because Yoder can be seen as a hybrid rights case. I don't remember what other right.
Dan: I think it has to be substantive due process the kind of Pierce kind of argument, right?
Will: Although I guess, I think Pierce and the other one. Yeah, Meyer. I think Pierce and Meyer-- [crosstalk]
Dan: Those are First Amendment cases, but they've now been retconned themselves as substantive due process, right?
Will: They're the other way or other way around.
Dan: Okay.
Will: Pierce and Meyer were substantial due process cases that have now been retconned as free speech type cases. And then Yoder might in part, therefore now be retconned as a free speech case because it's like Pierce and Meyer. But in Yoder, what the Amish wanted was to be able to educate their own children without getting punished for violating compulsory education laws. And the parents in these cases already have that. If they wanted to not send their kids to Montgomery County schools and homeschool them, that would be fine. Nobody argues with that. They want to not homeschool them, but still get the ability to opt out of the portion of the curriculum that they find religiously offensive. So, I think that is a little more tricky.
Will: And in fact, the big question I had was suppose that the Amish and Yoder had wanted to keep their kids in the public schools but just have them not receive any of the parts of the public school education that burdened their religion, I guess all of the peer pressure to be modern, I mean, what would that even look like? You have to tell the Amish parents every day that there might be peer pressure to join the modern world. And the school would say, “Well, we can't really do that because we don't know what day that'll be. Just like here they're like, we don't know what days we're going to talk about inclusivity and love.”
Dan: Yeah. My instinct is that would not have won because part of what makes the resultant Yoder attractive is this idea that it's like heavy handed compulsion. You will face sanctions if you don't send your kids to school. Whereas that argument is asking for more of an affirmative tailoring. “Can you give us a bespoke curriculum?” And that seems both harder to administer and also that there's less in the way of hard compulsion that you're worried about.
Will: Yeah. I guess, similarly, another question is how to think about the books in this case. If you think of these as unusually didactic, ideological books that don't really belong in the curriculum. And so of course, one solution is to just say the school just needs to pull these unusually bad and woke books. Then the decision is narrower, right?
Dan: Yeah. And there ends up being this disagreement in the case about how to even interpret the books. Whereas Justice Alito provides excerpts from several of them in his appendix, and then Justice Sotomayor has her own appendix where she reproduces one of the books in full. I think you're the author of one of these books. I don't know how you feel about it. [Will laughs] Now, copyright of your book is kind of mood, because anyone can go get it, but maybe it actually ends up increasing sales.
Will: Certainly, if you're a law professor and the court reproduced your law review article in whole and an appendix to argue about it, we'd be happy, right?
Dan: Yeah. But you don't get paid for your articles to begin with.
Will: That's true. Yes.
Dan: I'm not really losing anything.
Will: And I don't think children's book authors live by the site count in the same way law professors do.
Dan: No, some of them make a lot of money. So, yeah, there's this debate about this one book, Uncle Bobby's Wedding, which is about this girl, her uncle is getting married. She's unsure what to think about it, he marries a man. And is this book about same sex marriage, or is this just a book about a girl and her uncle and being worried that she's going to not get as much time with him? I don't know. Does it matter? I mean, it seems clear that there are some of the other books in the record that are much more obviously didactic. And is inculcatory a word? I feel like it should be. Does that sound like a word?
Will: [laughs] Incul-- [unintelligible [00:54:25] inculcate?
Dan: Yeah.
Will: Yeah. All right. Sure.
Dan: Is it a word?
Will: I don't know.
Dan: Okay, so specifically, one or two of the books about transgender acceptance, encouraging children to have their own gender identity. It seemed to me much more, more obviously, you know, kind of in that direction.
Will: Yeah.
Dan: And so, I don't know if it's a litigation mistake or just a framing mistake. I mean, it ends up just feeling like a sideshow and people are trying to dunk on the majority saying, “Oh, they didn't read these books very carefully, they're being misleading and how they use the books.” Okay, that's fine. Maybe the court is being overly aggressive in how it's reading Uncle Bobby's Wedding. But some of the other books, I think it's harder to play that game with.
Will: Yeah.
Dan: You know, we're going to run out of time for the other case.
Will: I was going to warn you about that. So, I think, one question about this case or one thing about this case before we wrap up. So, one of the trans books is Born Ready: The True Story of a Boy Named Penelope. Did you notice this difference in how the majority and the dissent talk about the book and in particular about how they gender Penelope?
Dan: That's interesting.
Will: So, one of my colleagues pointed this out and was especially disturbed by the fact that the majority describes pages five to six. The True Story of a Boy Named Penelope tells the story of Penelope, a child who was initially treated as a girl. The story is told from the perspective of Penelope. When Penelope's mother later assures her that if you feel like a boy, that's okay, Penelope responds, “No, I am a boy.” Penelope tells her mother. So, it's using female pronouns for Penelope, even though Penelope identifies as a boy. By contrast, in the dissent, when Sotomayor talks about Penelope.
Dan: Yeah, this is on page five.
Will: By contrast, in the dissent, when the dissent talks about Penelope, when Penelope tells his mother that he is a boy, she accepts him. So, even in the course of talking about these books, the majority and the dissent splits 6-3 on whether Penelope is a he or a she.
Dan: Yeah, that's really interesting.
Will: The court could have. If you were trying to be more delicate, it's a short passage. You could have written the opinion to not use pronouns to just say Penelope over and over again to avoid taking a position. But I guess there are six Justices who are willing to take a position.
Dan: Maybe this kind of slid on by. I mean, Justice Sotomayor doesn't make an issue out of it, does she?
Will: I don't think so. My memory also is so, in the Chief's opinion of Skrmetti, he uses, I guess, more inclusive terminology. And then he says, “I will use trans boy to describe a person who was born a girl and now identifies as a boy.” And I remember seeing some conservative readers say, “Well, we love the fact that the state won in Skrmetti, but we're upset that the Chief has this woke terminology.” And I remember reading somebody say, “I assume the other conservatives joined this just because there's a norm that you kind of defer to the author of the op on those kinds of things.” So, I wonder if Justice Alito did this in conscious retaliation. So, the same six Justices would now have signed up to two opinions with different usage to make clear there's not one norm.
Dan: So, I doubt that because these opinions were presumably being worked on in parallel tracks. I doubt he went and rewrote it in the final week.
Will: I don't know. I mean, who knows when these two opinions were circulated? But you wouldn't be surprised if there was some back and forth among the Justices about the pronouns. Right?
Dan: Yeah. I mean, I do think avoiding taking a position on that probably would have made the majority stronger because it just doesn't give people who disagree this foothold for criticism that the court is actually just taking sides on this disputed issue rather than trying to create room for people that disagree.
Will: Yeah. My memory is this is also something that comes up in the lower courts, that there's, I think, a circuit split on what pronouns to use when handling an Eighth Amendment claim by a trans prisoner. I think for a while, the norm was to use the kind of more inclusive plaintiff preferred pronouns. And then I think a Fifth Circuit opinion intentionally disagreed and used the other pronouns. Is it Justice Scalia who used to say, “Terminology is destiny?” [Dan laughs] And just the way you frame and talk about these things affects how people think about them? So, I guess I can see why, if you're in the majority and you think this is a point of view that should not be treated as marginalized or forbidden, then you might use the pronouns even at the cost of being less neutral.
Okay, I have one last question, and then I promise we can talk about porn. In Uncle Bobby's wedding if you look at the pictures another fact about these two men is that they seem to have different skin colors.
Dan: Yes.
Will: If a parent had religious objections to that, do you think this case would come out exactly the same way? A parent who says, “I need to be told about any book in which people of different races are going to get married and they'll be treated as okay so that I cannot have my child go,” same result?
Dan: I think no. I think explaining why no is challenging. I mean, I do think one undercurrent in cases like this is this idea that this is a situation where the government seems to be taking sides on a disputed issue. Whereas in 2025, I think everyone is supposed to be okay with interracial marriage. And that said, explaining exactly why that claim should lose is going to be a little challenging. Maybe that law, maybe you'd apply strict scrutiny and find that it survives. I'm not totally sure, but it's just impossible for me to believe that now there has to be opt out anytime. Like anytime you teach something about Martin Luther King and Civil Rights.
Will: Yeah. Although a lot of the Martin Luther King books are not appropriate for little kids just because of the violence.
Dan: I assume there are some child friendly Martin Luther King books.
Will: You'd be surprised. Okay, I have a whole story about that.
Dan: Okay. We'll save that for the ERISA podcast as a digression before we get to ERISA. Okay. I don't think we have time to really get into it, but there is this interesting concurrence by Justice Thomas, who, as you said, seems to be taking a little bit more of the position that this is woke indoctrination. I mean, the thing that's interesting there, he says a couple things, but he seems to lean in a little bit to history and tradition, both here and in the case we're going to talk about momentarily. And one thing that he emphasizes is there's not history and tradition of teaching this kind of stuff in schools. Not totally clear why that matters. Did you figure that out?
Will: I think it matters because history and tradition can be used to justify things that would otherwise burden First Amendment rights.
Dan: Okay. So, it's sort of like, if this is something that's been done in a long time, like teaching math, the state can point to that and say this is less of a burden.
Will: Yeah. Or regulating obscenity in the free speech context.
Dan: Yeah. But just staying here, staying with this.
Will: Well, he might be trying to import a history and tradition test to the rest of the First Amendment. That's what I mean.
Dan: Okay.
Will: Which the court in the Establishment Clause context already does. It says, “We've had monuments that say God on them forever. So, they're okay.” In the free speech context, we do it. So, it might be doing it here too.
Dan: Okay. Well, is that a good segue to our other case?
Will: Sure.
Dan: So, it is good that you ended up not having your hard stop, because we are going to go a little bit over. But we did promise two merits cases, and these are two merits cases that do make sense to go together. And so, I think we got to do it. So, the other case we want to talk about is Free Speech Coalition v. Paxton. So, this is another case about protecting children from the modern world. And it's another case that I think seems hard. Now, it's a case about a Texas law, one that resembles laws that have actually been passed in nearly half of the states. I knew that this was a thing that was happening, but didn't realize quite how extensive it was.
So, basically, many red states have passed laws like this that basically say, “If you are a website that can be defined in different ways, but if you're a website basically that provides a lot of pornography, you have to implement some kind of meaningful age verification system so that children can't just log onto your website and see all sorts of pornography.”
Will: Right. And so, as a baseline, sort of 2 ground setting or 3 ground setting sort of pieces of precedent. So, we have a constitutional law of obscenity. There's something called obscenity that's constitutionally unprotected but is defined incredibly narrowly and counterintuitively to many laypeople, does not include most pornography. It depends on community standards. It has to lack any redeeming social value and be patently offensive. I think the Reagan administration was the last time the court tried to seriously prosecute obscenity and tried to bring obscenity prosecutions in really conservative districts. And even then, they couldn't get convictions because turned out the jurors were not as offended by the pornography as people hoped.
There was infamously this period where the court was working at the obscenity standard and still had mandatory jurisdiction, so just had to take these cases and decide them summarily. And supposedly, I think it's the brethren says this. Supposedly some core set of the Justices who didn't think it was categorically forbidden or permitted would go view the stuff.
Dan: Yeah, it was called movie night. They would do it at the end of the term.
Will: Yeah, it was like Redrup or something was the case at the time. And I think some of the Justices had view about which body parts you could see and whether or not they were in certain states.
Dan: A lot of the clerks, clerks would watch too. I guess this was a period where all the clerks were men.
Will: Yeah. And this stuff was not easily available on the internet. Okay, so this is not obscenity. It's not categorically unprotected. Obscenity, of course, would be different. And of course, child pornography is now a similar category or a subset of obscenity, that's all just like forbidden. Then there's a case called Ginsberg v. New York where the court says there's another set of stuff that's “harmful to minors.” So, it's constitutionally unpredicted as to minors, as to kids, but adults have a right to get it.
Dan: It's basically like there's a different definition of obscenity as to minors. Something can be obscene as to minors, but not as to adults.
Will: Right. And that includes soft core pornography, maybe even what we call girly magazines. I don't know. This is not a literature I'm super nuanced in, but a whole set of the stuff that in essence, you can require physical bookstores to put it somewhere that kids can't get it and ID them if they want to buy it.
Dan: Yes, that's okay.
Will: Yes, that's okay. And of course, Texas is going to argue, they're just doing that. Then there's another set of cases basically, since the development of the internet, where there have been various laws trying to restrict internet access to pornography, and they always get struck down. And the exact technology, of course, changes, but several times over and over again, the court has said, “When people are trying to do a version of that thing on the internet, the court has said, no, this is too burdensome, this isn't tailored enough, etc.
Dan: Right. Because imposing a law like that obviously limits the access of the material to minors, but also necessarily makes it harder for adults to access.
Will: Right. And so, we know in the brick-and-mortar realm, you can make people who look young, show an ID before they buy something in this class of material. And we know on the internet you can't make it too hard for adults who want to get protected pornography to get it. And so, this is the latest round of those two lines of precedent.
Dan: I would just say that problem, I think, is what makes this a very hard issue, both as a policy matter and as a constitutional matter. Because I think that if there were a way to provide age verification that worked the same way that requiring someone to physically hand over their ID does in an adult bookstore, I think there would be a lot of consensuses that a law like this could survive.
Will: Yes.
Dan: Right. And the thing that makes it tricky is that every method, there are methods to provide age verification, but they implicate privacy in ways that handing over your ID at the bookstore does not. You hand over your ID, the clerk looks at it and hands it back, typically does not go take it in the back and xerox it. Whereas if you're using one of these age verification systems, you're transmitting data, who knows what random website is doing with your data, who knows who it could be used by later. And they're also expensive. There's some information in the record here about how costly it is to implement these systems for adult websites, ways that might be really prohibitively expensive. And maybe in part for that reason, some of the leading pornography, free pornography websites have just stopped serving IP addresses coming out of those states.
Will: Right.
Dan: I think clearly, in part, they're doing that as a kind of political pressure tactic because I'm sure there's many voters in Texas and many other red states who go log on to Pornhub or whatever leading site and they get this message and they're like, “Goddamn legislature.”
Will: [laughs] Right.
Dan: Missouri apparently does not have one of these laws. Kind of what makes Missouri different than so many of the other red states? I'm not sure. More libertarian maybe? I don't know. Not really. Is it the influence of Josh Hawley?
Will: More lurid? [laughs]
Dan: I guess we do-- You know, here's a possible explanation. In Missouri, we do have kind of where we're a little bit. At least St. Louis is a little bit French. We have the second largest Mardi Gras in the United States. I mean, it's a distant second, but we're very tolerant on alcohol here.
Will: Louisiana has one of these laws, Dan.
Dan: Yeah, I don't know. Look, I'm just doing my best here.
Will: I know. Just saying. [laughs]
Dan: Yeah. You know, we don't have an open container law statewide.
Will: You could just drive around with open containers.
Dan: The driver can't be drinking. But I could go pick somebody up at the airport and hand them a beer. I've done that.
Will: What is the purpose of open container laws?
Dan: I think they're like prophylactic measures to target drunk driving and they make it easier to, it's just one more thing you can prove very easily without necessarily having to do a blood alcohol test.
Will: I guess.
Dan: We have some at the county level in Missouri, but not at the state level.
Will: Yeah.
Dan: You can drink. You can bring beer to the park. It's nice.
Will: Okay, good. I'll try it.
Dan: If you come visit, we'll do that.
Will: We'll also [unintelligible [01:10:33].
Dan: Can I finish my thought?
Will: Yeah.
Dan: The age verification is hard to do in a way that isn't much, much more burdensome on the projected speech than it is in the physical world. That said, the alternative also seems to not work well at all. The alternative that's been proposed is encouraging parents to install content filtering software.
Will: Right. Or sometimes you want to access a website that's about alcohol. Sometimes they tell you, “You cannot read this website unless you say you're 21, click here.”
Dan: Which I always find really stupid, it's not like obscene for an 18-year-old to like learn about tequila? I don't know. But yeah, I mean, I have like old iPads that my kids use to like watch movies sometimes. And I would describe myself as like fairly teched up. I think in terms of technology fluency. I'm not 99th percentile, but I'm certainly in above the 90th percentile. I'm always like the podcasting stuff I'm the tech guy. I think that's fair. And just setting up the basic Apple restrictions is incredibly complicated to get it working correctly and very easy to screw up for me. And I think probably close to impossible for most parents.
And so, you can very easily end up with a situation where some really shocking material that was way exceeds anything that was available, I think in the 70s when a lot of these obscenity cases were being litigated is just accessible within five seconds for children. So that seems like actually a really bad solution too. And so that makes it quite hard, I think.
Will: Yeah, no, I agree. Although these laws don't totally deal with that because the laws only apply to websites for which a substantial portion of the website involves pornography. On Twitter now, in the Twitter replies, there's just like some pretty pornographic stuff.
Dan: Yeah. I mean even pre-Musk, I mean Twitter has always been much more libertarian and First Amendment-ish. It always had, you don't get banned for having pornographic content, whereas you do on pretty much Facebook, Instagram.
Will: Yeah. So that still I think [crosstalk] to law. And I guess one-- [crosstalk]
Dan: Could Pornhub just put a bunch of encyclopedias on its website to kind of cancel out the--
Will: That's what I was about to say. I think there's this famous claim, I don't know if it's true, that various pornographic websites during the old obscenity test, just got random people to write what we would now call AI slop. Just random essays. I mean, I guess this is like-- [crosstalk].
Dan: Playboy magazine had a bunch of Gore Vidal stuff in it.
Will: They went to the trouble to have good stuff once they're going to do it. They want to be sophisticated. So, same thing, but not Gore Vidal. Just so we could say, “Look, it's like Playboy, we have articles.” And so, I think if Pornhub, I mean the problem is again, it's like one third of the content. So, Pornhub would need to be acquired by-- It would need a lot of content, a lot of nonpornographic content. But I guess AI could produce just like a huge amount of random and slop that would be over at AI Hub.
Dan: I mean I'm sure they would just amend the laws in some way to come up with some solution to that.
Will: But it's not totally. I mean, as with the race between tax shelter generators and revenue collectors, you could imagine an arms race in which the people who really want to figure this out can always figure out how to stay one step ahead of Reddit.
Dan: Yeah, but I mean, the other thing is just absent more severe restrictions on the internet, jurisdictions that aren't subject to Texas's enforcement, don't have to follow this, right?
Will: True.
Dan: I mean, Texas could make Internet service providers in its jurisdiction actually block access to those websites, I think. But if there's some European website that just says, “This is inconsistent with Swedish principles, we're not going to do that.”
Will: Yeah. Okay. Can we talk about the legal analysis for a minute?
Dan: Okay. Legal analysis. And can I just say, I think that this majority opinion is not very good.
Will: Well, okay. So, unfortunately, the way this whole policy/precedent debate gets cashed out is through what I always regarded as the least edifying way to think about First Amendment problems, which is what is the level of scrutiny? We have three choices. The Fifth Circuit shows rational basis scrutiny, which is like, “This isn't really a First Amendment case. This is really about conduct.” So, whatever. This is just kind of the equivalent of the curly magazine laws for magazines. The dissent would choose strict scrutiny, which is like the highest level of scrutiny known to constitutional law. Okay. Only if there's a compelling interest. You can't figure out any other way to serve the compelling interest. The majority goes out of its way to say it's not rational basis scrutiny. The Fifth Circuit's wrong. There's a real First Amendment scrutiny here, but it's not strict scrutiny.
The dissent's wrong. I think in part because if we apply the dissents test, we have to strike down these laws, but we want to uphold these laws. And so, what do we do? Well, we want to apply scrutiny but not strike down the law. Lo and behold, intermediate scrutiny.
Dan: I just found this wholly unpersuasive as a matter of kind of--
Will: So, what's wrong with that?
Dan: Well, what's wrong with that seems to be precedent in the sense that the way the court is trying to distinguish prior cases struck me as very unpersuasive. So, for example, in the majority opinion, the court is trying to distinguish the two cases you talked about, Reno and Ashcroft 2. And the court says the laws there were different because those were bans. This isn't a ban. And so, I was trying to understand why the law at issue in Reno was a ban and this law is not a ban. And I guess the reason is that there was an affirmative defense, the speech was prohibited. Unless you could establish this is the law in Ashcroft 2, the COPA, there was an age verification affirmative defense, whereas here the lack of age verification is an element. That's the difference, really? That's what takes this from being a content-based regulation of speech to being just something that incidentally burdens speech. Is that right? Is that persuasive?
Will: No. But on the other hand, in Ginsburg, we do have a content-based regulation of speech, of protected speech. And we say adults who want to access that protected speech have to do a thing they don't want to do. And we say it's okay because there's a good reason for it.
Dan: Don't you think that would survive strict scrutiny? That seems like maybe that's the answer. If you accept the existing framework and you could say this whole thing of tears of scrutiny is dumb, that's fine. But it just seems like there's a very compelling interest. And just asking someone to show the clerk their ID seems like the least restrictive way to--
Will: So, I don't know whether it would surround scrutiny.
Dan: Really?
Will: I don't think this book applies scrutiny.
Dan: Yeah, no, no. I'm just saying but don't you think it should?
Will: Well, here's the problem. There are two different strict scrutinies in the court's case law, one of which is fatal, in fact, because I'm sure that the law in Ginsburg is not the least restrictive means of satisfying this compelling interest. I'm sure there is some magazine that's covered by the law that doesn't need to be covered by the law. And so, then you say, the law is overbroad, or there's some scenario, like, there's some person situation in which the ID is required. There is a super strict form of strict scrutiny that is often applied in First Amendment cases that is fatal, in fact. There's a second form of strict scrutiny, which is more like a pretty pragmatic reasonableness requirement with a strong thumb on the scale in favor of speech.
And I'm sure the ban would survive the second strict scrutiny and not the first strict scrutiny. And part of the problem is, Justice Kagan believes in the second strict scrutiny, so she can say, “Let's apply the second strict scrutiny and that'll uphold these reasonable laws.” But the majority believes in the first strict scrutiny, so it wouldn't survive. So, then they needed immediate scrutiny.
Dan: Yeah.
Will: So, this might all be a labeling game.
Dan: Yeah. And one thing that's interesting. So, in supporting your claim, that's what the majority thinks. On page 20 in the majority opinion, it says, “We have held only once that a law triggered but satisfied strict scrutiny in the First Amendment context.” And cites Holder v. Humanitarian Law Project from 2010. It's a case from the term I clerked, which was about the law, about providing material support to terrorist organizations. And that is interesting because if you read that case carefully, it never says it's applying strict scrutiny. It is a Chief opinion that is very savvy.
Will: Right. Later, when the court says that it's applying strict scrutiny. But this is not right. Is it about Burson v. Freeman and Williams-Yulee?
Dan: So, here's the problem, which is that the one class I should have taken in law school but didn't take was First Amendment. And I've never taught the class, so I'm always kind of like, behind the curve on these cases. But it did seem wrong to me.
Will: Okay. I thought there was a case, Williams-Yulee v. Florida Bar, where there's some restriction on what judges could do while campaigning, where the Chief Justice writes an opinion upholding the law under strict scrutiny.
Dan: There is a footnote about this that said, “That doesn't count because only four members of the majority thought that the statute triggered strict scrutiny to begin with,” and Justice Ginsburg thought it didn't apply. There you go.
Will: Okay.
Dan: There you go.
Will: Okay. Fair enough. And another one I was going to say was Burson v. Freeman, which is about politics of polling places, but that may also be a fractured opinion.
Dan: That one is not cited, I believe.
Will: Okay.
Dan: So, yeah, I don't know. Maybe this is an instance where it ends up being frustrating that we're just having this battle about the categories rather than getting to the meat of the thing. I mean, I thought that this was, as a matter of legal craft, not a very good majority opinion as a matter of legal craft. Very well written dissent by Justice Kagan, as typically they are. And she points out some weird moves the majority is making. The majority seems to be, like, redefining the First Amendment right here for adults as the right to access to pornography with age verification.
Will: [chuckles] Yeah, I agree. The dissent is very good. I'm just not quite sure if you think this is reasonable, a reasonable analogy to Ginsburg and should be upheld. I'm not quite sure what you're supposed to say.
Dan: Yeah. I mean, the dissent doesn't say the law is unconstitutional. The dissent says, “Apply strict scrutiny. Go through the arguments below.”
Will: Yeah, I think that dissent would think at least some of these laws fail strict scrutiny.
Dan: That seems likely. I mean, just, you know--
Will: Maybe not all.
Dan: Yeah, I mean, once you put yourself in that box, it does. But again, I mean, I do think that the other means really don't work very well. Just telling parents to apply content filtering, I think really doesn't work well. I mean, maybe you could have a law that mandates, Apple and Google, provide better content filtering options on devices. That would be an important thing.
Will: Or a law that requires the websites to do something that enables better content filtering. So, you think of like in some of these things, like the Apple Podcast Store, there's like an explicit designation and then you can filter based on that a little more easily or in like the Disney+ app or whatever, like all the content has an age category and you can pretty easily set the profile to only access the correct age stuff.
Dan: Yeah. Although Disney+ is very aggressive. There's some of the regular Disney movies that are blocked if you use the children's profile. So, we just stopped using that.
Will: You can imagine a law that says any website that would be covered by this has to, whatever, put some code at the top of every page, that Safari and all the other website things know, how to immediately block or whatever you could imagine like that. But we're not doing that.
Dan: Yeah.
Will: Yeah. I mean, look, I think these two opinions are the Court's two least satisfying major opinions at the end of the term. Mahmoud and Free Speech Coalition. This one at least has the virtue of erring on the side of the constitutionality, which I always like. The Court's going to err. I prefer they err on the side of upholding things. Mahmoud does not even have that virtue. And both of these opinions seem like the Court's pragmatism is showing a little bit.
Dan: And can we combine these with Skrmetti? Because this is an obvious point of criticism that folks on the left are making, which is you've got these three cases. They're all cases that involve the intersection of hot button issues about sexuality and gender and children, and the Court takes the conservative side of that disputed issue in all three of those cases. So you see any inconsistency you can point out there? Do you think they're all of a piece?
Will: The obvious consistency is the Court's taking the conservative side of all three of them.
Dan: No, but like a good, well, principled consistency.
Will: I mean, I think it would be easy to say this case in Skrmetti-- It'd be easier if Mahmoud came the other way. And then the court could say, “Look, in red states, they have one view of children and sex, and in blue states, they have another view. And if you don't like it, move from Montgomery County to Tennessee.” Court's not doing that, but that would be the easiest one. I do think all these cases are muddied somewhat. Especially these two cases are muddied by precedent, though in a way that just means it's harder to figure out once you have Yoder and Ginsburg on the books. In both cases, the question is, in all precedent cases, no case is exactly like the previous case. There are always differences. There are always similarities.
And the question about which differences count and which similarities count is always a judgment call. This was Karl Llewellyn's fundamental point about why realism was inevitable. And he's kind of right.
Dan: Yeah. So, how do these cases contribute to your term grade that you gave to the New York Times, you’re a minus? Are they bringing the average up or down?
Will: These cases are bringing the average down.
Dan: Okay. Does Skrmetti fit into that too or are we just talking about?
Will: No, I mean, Skrmetti is different.
Dan: Yeah. I mean, it has a similar feel to me as Free Speech Coalition in the sense that there's these elaborate gymnastics played to take the case out of a box in the majority opinion. All the word games that we talked about to try to explain in the majority opinion why this is actually not drawing of classification based on sex or gender that are somewhat unsatisfying.
Will: I guess in Skrmetti, it seems like the court is taking the case out of a box where the court is dubious, the existence of the box. And it's intuitively right that the case doesn't belong in the box and is different. But coming from a court that is otherwise Free speech hawks, right?
Dan: Yeah.
Will: A court that otherwise applies very vigorous scrutiny to lots of restrictions on speech. If you want to make a, I don't know what the right analogy is, but there's lots of stuff that if you want to do it on the Internet, the Supreme Court will be quite indulgent of you.
Dan: Money to political candidates.
Will: Yeah. Animal Crush videos. Then that's what makes Free Speech Coalition trickier.
Dan: Yeah, that's fair.
Will: And makes it feel more gerrymandered. And that's one of Justice Kagan's good points.
Dan: Yeah. Okay. So thanks for listening and bearing with this somewhat long episode, but hopefully people are happy that we dug into some of the marquee hot button divisive cases today. Please rate and review the show on the Apple Podcast app or wherever you get your podcasts. Visit our website dividedargument.com for transcripts of the episodes, blog.dividedargument.com for lots of commentary by the extended Divided Argument universe of friends and commentators, store.dividedargument.com for merchandise. Send us an email pod@dividedargument.com and leave us a voicemail 314-649-3790.
Will: Thanks to the Constitutional Law Institute for sponsoring all of our endeavors.
Dan: And if there's a long delay between this and our next episode, it will actually be because we are continuing to release episodes, but they are banned in the state in which you reside.
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