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OA256: The Bladensburg Cross
"Find the guilty. John Brill's bond to be guilty of been to lure show. What's the constitution was in breach? There is no one section just the vibe the thing. Objection your honor what leading the witness. Required bullets lawyers. Welcome to opening arguments. The podcast that pairs inquisitive interviewer with the real life. Lawyer this podcast is sponsored by the law offices of p Andrew Torres LLC for entertainment purposes, is not intended as legal advice does not form attorney client relationship. Don't take legal advice from podcast. Hello and welcome to opening arguments. This is two hundred fifty six I'm Thomas myth out over there as your lawyer Lee host Andrew Torres. How you doing, sir? Hey thomas. I am doing fantastic. I'm very very excited about today's show. How are you? I'm excited to it's always fun to have a guest come on. And explain something that someone who's working in on a case that we've been talking about. And that's the case today. It is Sarah Henry from the American humanist association, and we're going to be talking about the Bladensburg cross. You know, Andrew, it's totally normal. Totally non religious forty foot tall cross. I know one of those things I have one in my backyard as an atheist, I just, you know, I've just normal nonreligious cross that I like to keep forty foot high cross. Yeah. Yeah. It's. Did it? It's difficult to explain right to somebody who has an and and I used to live reasonably close to Bladensburg. Right. It is it is just a cross. It's the neighboring county to Montgomery County where where I used to live, and it is the way in which I have seen this giant cross described in the media it almost it's hard to. It's almost hard to recognize from the descriptions, right? Like like it. You know, it aronie Asli is, you know, sometimes described as like being in a cemetery. Right. It's not we'll get. We'll get into all that with Sarah on the show. I'm really looking forward to that. It's absurd. But yeah, that's often the time the case with Christian privilege. Yes. We'll get into all that with with Sarah. I'm excited. But first, we've got an injury was right. I encourage Andrew due to do this. Because you know, I think he gets too much flack when he gets a minor detail wrong. And not enough credit when he gets a major prediction, right? And so victory lap time. When you think veto, please answer the question does the defense case hold water. Now Andriol tonight, you know, that well given the opportunity I'll I'll take my victory lap. We we alluded to this in in an aside on a rabbit trail on Friday show, but the the supreme court unanimously handed down its ruling in the Tim's versus Indiana. That was the case involving the incorporation doctrine of incorporating out, the eighth amendment on excessive fines and bail to the state. And you might recall that being we broke that down in episode two thirty four and and I predicted that the that the court would pretty noncontroversial and across political lines. Nhs would would incorporate out the eighth amendment to the state, and they and so I'm gonna include the ruling in the show notes. We could there's in a future episode. Maybe we will talk about the the Thomas and Gorsuch concurrence because even non-controversial nine oh decision. Neal Gorsuch manages to scare the clown horn Adamy. But yeah, you know, but but now we got we got this end. Look, it is absolutely the right result. Right. That that the there is I cannot come up with a valid justification that the eighth amendment's prohibition on excessive fines should not be incorporated out to the states. And and now it is. So what are they going to be the effects of this? I mean, are we gonna see a major curtailing of seizing all this properties? Like is it how I guess how good are the results of this. Is it going to be some narrow? Thing. That's not applied everywhere is, you know, or or do you think this will make sleeping quick change in how police policy works? Well, I think I would I think I would shoot somewhere in the middle of those two extracts. This is an area asset forfeiture is an area that has come under scrutiny recently, both left and right. And, you know, those, you know in the next, you know, in the forseeable future, right? The the avenues towards validating individual rights in the supreme court are ones that are going to produce. You know, sort of odd alliances right from the courts left wing to the courts, right wing. And and and civil forfeiture is an area that you know, it brings together the, you know, the left's concern about fairness with the rights concern about protecting property rights. And and so I I think I mean, the, you know, the language in the case gives you know, is not it's not narrowly construed, so it does give kind of strong potential avenue, and you know, it again the way in which case law builds up is, you know, so a factual case by case basis. But, but I I would not be surprised to see us continue to make progress in this area, even at the supreme court level. So all right. A rare bit of good news. Thank. I well, this is the secular show thank heaven. You know, it is that still. Okay. Speaking of which why don't we grab a Sarah Henry, get her on the line and discuss totally nonreligious everyday. Theus secular forty foot crosses that sounds great. And we're here with Sarah Henry, how you doing Sarah, Jane, great. Thank you so much for having me. Thank you for coming on. We're excited to have you. And you're going to give us an update on the Bladensburg cross cases that right, right? Yes. Okay. Well, where we wanna start Andrew so Sarah. I mean, why no one we just talk a little bit about about the history of the case. And you know, what's. Kinda give some background than we can talk about. What what a is doing? And what what you and I are going to be doing tomorrow in terms of being out on the on the steps of the supreme court to to to have a rally. So once you just go ahead gonna start it share. So and just about five years ago actually this month, February the American humanist association filed a complaint on behalf of three local residents in Bladensburg Maryland against the Maryland, national park and planning commission regarding the constitutionality of this memorial. This currently stands in the town of Bladensburg. So the monument is a forty foot tall Christian cross Christian concrete cross it stands in the middle of a highway intersection. Really, right. When you enter the town. So you come over the bridge from fifty inches. To Bladensburg Maryland. And really the first thing you see, and it seems to be a really serious imposition of church onto state operations. The government actually pays for the maintenance of the cross Dave invested just over one hundred thousand dollars of taxpayer funds into the maintenance of the cross up until this point, and they have another hundred grand earmarked for additional restoration of the of the Christian symbol. So of course, we see this as a violation of the separation of church and state mandated by our constitution and move some serious concerns about the entanglement of religion and government, especially in this town and the American Legion intervened. The district court the for fourth circuit district court found in our favor in favor of the American humane association in our our clients and the American Legion and the Maryland commission appealed to supreme court. So that's where we're at now. And we'll be hearing arguments in front of the court. Next tomorrow on February twenty seventh. Yes. So let let me talk a little bit about the the procedural history. The when HA initially filed they they went before the district court district, Maryland lost at the district court level. And I wanna talk a little bit about about what happened there in terms of the factual record. And then the fourth circuit court of appeals reversed in you know, what to me I'm gonna link it in the show notes is is a totally straightforward decision. And and I think all of us were kind of on eggshells win. The case was appealed to the supreme court and the supreme court granted cert because you know, this this to me this is a totally straightforward application of the lemon test. Right. And we've talked about lemon verse Kertzman on the show. But essentially right in order to. In order for government efforts not to run afoul of the establishment clause. They have to meet all three prongs of the lemon test, right? In other words, the law must have a secular purpose. It's primary effect must be neither to inhibit nor to advance religion. And it must not foster excessive entanglement with religion. You had kind of let off Sara with saying. You are concerned about the entanglement portion of of that test. Is that is that where sort of the AJ is putting its efforts or, you know, talk to me about about what you think or the or the entanglement questions. Sure. So I think we have concerns pretty pretty grave concerns about the entanglement as well as the advancement of Christianity to the exclusion of other faiths. Thanks to this monument. The entanglement questions, I think are relatively clear we. Certainly agree with a lot of what the fourth Circuit Judge said in his decision. I think he laid it out. Very clearly we think that the cross is a clear entanglement on. There's really no separating it from the government when you drive through the highway. It's very clear that that is property that belongs to the local government because it is directly in the middle of the intersection. It's not even really off to the side or anything that could be construed as private property. So it seems very clear in addition to that funds do go directly to the maintenance of the memorial. So that seems to be up to us and to the fourth circuit clear violation. So so let's let's let's run through each of these three. Because again, I want to emphasize for our listeners that if if the action violates any one of the provisions of the lemon test than than it is unconstitutional and model. And Molly rushing listeners because is the lemon tests still good or did, you know, the last decision that we talked about you know, that that with the the playgrounds and stuff that seemed to not go the way we hit hoped. It would go is the lemon tests still what we think they're using in the supreme court, so lemon versus Kertzman covers right? The first amendment has two religion clauses. Right. The first is the free exercise clause guarantee that is covered or or so we thought by employment division versus Smith. Right. That basically says again up until recently, we thought that general laws of neutral applicability would apply regardless even if they incidentally, Burton your religion so long as they you know, they do not directly target your religion. And that's where you know, the last the last couple of decisions that we've dealt with have have focused on. On the free exercise clause. This this is the lemon test covers the establishment portion, right? The government may not establish a religion. But, but yeah, I mean, I agree with you Thomas that I think that this is potentially a vehicle for the supreme court, which we've already discussed has a pretty dim view of precedent to just Chuck out the the lemon test in its entirety. And when you read the briefings, right when you read the briefs that were filed in this case by both the Maryland, national capital park, planning commission and the American Legion, they essentially invite this supreme court to overrule lemon. So in in. I mean in kind of walking through it seems to me the the that this is why the fourth circuit really had no difficulty concluding that that violated the limited the first is. I mean, let's let's talk about the. The the district court's determination that a forty foot high cross made out of cement, and again, this is the. You're crucifying on that cross. Yeah. No. I mean, you know, it is it is obviously a, you know, a blatantly sectarian symbol, the the district court said that that it it had a secular purpose. And and and there were number one that the cross has been primarily used for veterans events yet. Go ahead. I mean, I think I think they're probably wrong on all of these facts. But, but but we talk a little bit about that shares. The point that the cross the point that Christian cross is a surf secular purpose is just frankly, not true. The cross was erected for religious reasons. The town commission that approved it did. So because they wanted to honor the religious faith of veterans who who were killed in World War One. And they when they dedicated the cross initially the dedication involved Christian services. They rededication in nineteen eighty-five involved Christian services. There have been Christian services held at the cross. It has served. Sorry. Sorry. But what what kind of Christian services have been held at this cross. So the American Legion, and the sort of group that was involved in the initial founding of the cross has brought a Christian ministry, Christian worship leaders to the cross to lead veterans in service will the that seems pretty straight. Do the John Oliver. We got him over. Yeah. Case. Well, in fact, the cross was specifically like this specific symbol the Christian cross was chosen to specifically represent a likeness of the cross of Calvary as described in the bible. So it was very clear and the first committee that oversaw the effort to design. The cross was literally named the Calvary cross memorial committee. There's really no question. But is it going those kinds of things where because Christians in this country are blind to the Christian privilege? They have they just think like, oh, no. This is the thing. Everybody does right is. It's not just Christians. We all love our crosses worshipping at them. That's just a normal everyday. American thing. We have a lot of frustration. Because they think this cross really does not only does it represent Christianity and Christian sort of. Points of view throughout the community. The original cross and the plaque that is attached to the cross that I'm lists the names of forty nine veterans that are from the area intentionally excludes a number of Jewish veterans from the area who served in many of the same regiments as the Christian men who are listed. There's really no question that this memorial has been Christian and religious in nature since the day. It was conceived. Thomas you were a little bit prescient there. The next argument that was raised by the the Maryland parties and accepted by the district court was that again, I'm quoting directly from the district court here that crosses are generally regarded as commemorative symbols for World War. What? So, you know. Another point that just isn't true, the common symbol for World War. One memorial is actually the secular Doboy. He can be found at a number of World War One memorials, including another one World War. One memorial in Bladensburg, Maryland. Oh my gosh. Well, what about right the third justification that's listed here. And let me put this in context. Right. That they that the district court said that that secular war memorials surround the cross. And this is, you know, for analogy purposes, the idea that, you know, if you have, you know, the little baby Jesus in a manger as your Christmas displays long as you put, you know, a minora up, and a, you know, a kwanza candle and a couple of other things that you know, that putting additional stuff around it imbues an overall display with with a secular character of you know, in that case celebrating the holidays. How does how does that justification kind of matchup with with the Bladensburg cross? I it's just not super realistic. When you go to the cross, it is true that you can see other secular warm Oriels around. And in fact, many of them all of those secular warm Oriels are beautiful. They are artful. They appropriately honor those that they are meant to honor. There's a scroll awa- a plaque number of things that actually we would find wholly acceptable in the area where the Bladensburg crosses located. But the fact that those memorials exist sort of sort of centrally and do not mitigate the fact that the Bladensburg cross is forty feet tall, it dominates the landscape when you come into the town. It's impossibly hard to notice the other memorials when they're sort of off to the side away from the road and the Bladensburg cross dominates. The intersection. We'll we'll I guess let's go to let's go to the the the last couple the the district also pointed out that that the American Legion symbol is on the face of the cross. And they said look that those are that that is a secular attribute. What what what are your thoughts on that? I don't think there's any disagreement that the American Legion symbol is a secular sort of symbol. I don't think a small plaque on a forty foot tall Christian cross discounts. The fact that across is a Christian symbol. And in addition to that the American Legion symbol is not the only thing on that cross. In fact, there are number of words, carved sort of mounted on the cross and one of those words is devotion. And interestingly devotion is not mentioned in any of the secular warm Oriels that surround that area are can be found in that sort of area of the city of the town. It's clear that when they said devotion. It was meant to be a reference to devotion to a Christian God. No that I I I'm doing my best to make the the the devil's advocacy arts down. That's that's that's a tough one. I it is there anything else. I mean, one of the things, you know, we've had interest idol on from from Morella and foundation, and and one of the things that Andrew, and I have talked about on a number of occasions in these kinds of cases is the the sort of repackaging rewriting of the facts at the supreme court level that that sometimes goes on. And are there any other sort of efforts to re characterize what this giant cross is? You know in the middle of busy intersection in Prince, George's county, Maryland like is there anything else where you see where we're, you know, you're kind of watching efforts to rewrite history take place before your eyes. And and it's worth. You know, sort of clarifying. No, that's not those aren't the facts. Yeah. I think one of those things is that there's some sentiment that the cross serves as a tombstone for those families whose war dead were buried overseas. And while that's an absolutely heartbreaking position. Frankly from a military family end. I completely understand the devastation that comes with losing a loved one to war. This isn't that case? And in fact, we fully support an effort to memorialize all veterans. And in fact, this cross was rededicated in nineteen eighty five to honour quoting from the city here all veterans of all wars. There's just no way that a Christian cross can do that. We're really trying to find something that can on our veterans of all wars. But I think this idea that it's tombstone or a grave marker is really a a misconception. There's no-one buried near that cross. It's an intersection. In fact, it's one of the busiest intersections in the county. It's it's really just disruptive. And would be frankly, a terrible tombstone. So I think that's one concern. I think another concern is that just this idea that Christian symbol, can you know, legitimately represent everyone. We know that it can't Ray we've spoken to so many veterans so many veterans have reached out to us whether they're non nonreligious from a minority religion or even Christian who've reached out to as just said like, I we haven't especially compelling story. Actually from one of our one of our good friends who has reached out to us and said, I'm a Christian. I'm very devout. But I served in the military for my country. I didn't serve in the military for my religion. And when I die I want the government to recognize my service, and I want my family to recognize my religion. And I think that that's just such an impactful point of view, right? Like, these people served with people from from minority faiths and no faith. And this memorial is frankly disrespectful to that service. So I completely agree with that. What does the American humanist association? What what do you want done with the cross? Right. I mean, do you want you want it torn down or, you know, do we wanna hang a couple of other religious symbols on it? Like, what do you want to do? So I think that idea putting other religious symbols near it is really not a realistic option. The cross is so big that it would be near impossible for any symbol to match the sort of towering presence. That's let's get a fifty foot Islam a crescent and a hundred foot high star of David, and, you know, be like that persona the Simpsons where all the billboards. Sorry. Anyway, I didn't mean to interrupt for Easter. More than that. There's just not that much space. Right. It's a highway intersection. There's not a whole lot of space there. It's really challenging even to get to the cross to to view it and look at the plaque. And learn more about it. I think we really agree with what the fourth circuit put forward, which is that we would accept reassign sorry reshape remove or reassign the ownership. So I think seeing that cross move to private land would be excellent opportunity for its historical value to remain while still not presenting the idea, and the image that the blatant the town of Bladensburg is sort of this Christian enclave, but also removing it in entirely or reshaping it would also be wholly acceptable. So when you say reshape tell me what that means. So I think removing or rebuilding or renovating to a secular symbol there are so many warm Oriels that are wholly secular. Into a great job of honoring the many veterans who have given their lives in sacrifice to our country. I think there are a lot of options here that you could reshape that memorial into an obelisk we could rebuild around it. It is sort of falling down. I'm not sure if you've had the opportunity to go visit. But despite the fact that the town has earmarked another hundred thousand dollars for rent for maintenance, the there are some experts who believe that the structural damage to the cross is such that not even that sort of renovation efforts will be enough to protect it. So it may come down on its own, frankly. But I think there are a lot of secular options here, the scroll the Doboy. There are just so many great things that other towns in our national government have really invested in to find. They've invested the time energy in the resources to find something that does honour all of the veterans who served in. We're looking for any of those really well oral arguments in this case are scheduled for tomorrow that is Wednesday the twenty seventh Siri you wanna talk about what HA is doing. We're arguments began at ten AM on the twenty seven and a little bit before that at eight thirty AM the American humane association is hosting a rally to honor them all outside of the supreme court. So that'll be outside the front steps from eight thirty to eleven thirty. And we have a really fantastic line as lineup of speakers set up to speak to the many different issues with this cross. So we've set up some. Tastic lawyers. Like, you Andrew who will be speaking tomorrow and veterans at various different faith groups end of no faith leaders of many of our meekest parties, including groups like the Muslim advocates Jewish war veterans as well. Some local elected officials. So we're really looking forward to it. And then of course, following oral arguments are plaintiffs will be speaking as well. So it's a great opportunity to hear more about why this case is so important why we think that this cross is such a constitutional violation. And learn more about both American Association in our legal work. Also, I am really looking forward to participating in the rally. It will be eight thirty AM on the right directly out in front of the of the supreme court building. Thanks so much for joining us, Sarah and giving us that that breakdown. I usually ask the cynical question because the Trump administration in. In the supreme court nominations have made me incredibly cynical so fast forward to win. The supreme court rules the wrong way on this. What what do you think will be there 'rationalization? I think it's really hard to now. I think if anything, of course, we're really confident in our legal position, and our attorney Monica Miller is absolutely fantastic. So I'm looking forward to absolutely devouring the transcripts in recordings of oral arguments. I'm not sure what the justification would be on the other side. I think of it did go the other way the the best we could hope for is narrow decision. I know that there's some excellent writing out there about why the court might go the other way. But unfortunately, I'm trying not to dedicate a whole lot of energy to. Fair enough. Well, at obviously, standing invitation to to Monica come on the show. She's probably a little busy at the moment. She definitely is a little busy at the moment. But following arguments. I know she'll she'll jump at the opportunity to debrief N and really get the chance to talk more about why we feel so strongly about this gas. I'm excited about that. But Andrew final short question. Is there some technicality that they'll use to get out of this? You know, rule the wrong way. Like they did. With the recent case, we discussed, you know, if if that happens, right? I mean, I think that they're really sort of two directions that this could go that this could go badly, right? It could go badly narrowly on factual grounds. And that would be readopting the district court's finding, you know, some version of that in the supreme court saying, well, look, you know, like this really does have a have a secular purpose. And everybody knows that crosses just honor war veterans it. It seems weird that that would be the bet the better scenario. But but but I think that Sarah's correct? Right. That that that would certainly be better than a a five Justice conservative majority saying as we're gonna dig into this a little bit after after Sarah's off the line, but the the the briefs explicitly urge the court not to apply the the lemon test in this case. And and I certainly think that it has to be a live option. And you know, it's one of the things I want I wanna talk to Monica about is. You know, how you write a supreme court brief that has to be pitched at you know, John Roberts who is you know, certainly no fan of the lemon test. And, you know, a no fan of the the notion of an expansive separation of church and state. So I. I think the there's some really really interesting things in in Monica's brief which is it's like ninety seven pages long because you have you have the two parties you have both the M C P P and and the American Legion. So she's she's taken on quite a burden in this. I know she's really looking forward to or arguments. One of the more recent developments on that front is that of course, the American Legion in the Maryland commission. We'll have arguing time, but the Trump administration did decide to intervene directly in this case will also be arguing Monica also be arguing against acting solicitor. General good luck tour. I'll pass along your well wishes for sure and I know she's excited to be on the show when things calm down a little bit around here. Excited to have her. Thanks so much Sarah for coming on. Wow. What a what a great interview. A thanks again. So much to Sarah for coming on an Android. I know you'd mentioned maybe had some more thoughts to to talk about here after Sarah's off the line. So what do you think? Yeah. Just just a few the first is. And I'm going to include the briefs that have been filed in this case in the show notes. You will see I think the principles that that Sarah was talking about really on full display. The the the Maryland national capital park planning commission. Their brief refers to the cross as the peace cross. Throughout the and it is, you know, from the historical background, right? Look that this was just part of what people did back then to commemorate World War One veterans. Right. You know, during the war the government printed posters with images of Latin crosses as battlefield gravesite markers to encourage Americans to buy war bonds, and the the president congress stab the three new medals for valor. All in the shape of the cross the distinguished service. Cross the navy cross and the air force. I mean, it it it there really is on the one hand an effort to kind of relitigate the facts. And and convince you that, you know, a a giant forty foot symbol of Christianity is really suck gives them. If this were a forty foot corron or whatever. Forty foot crescent and star. Telling Christians that represents everybody. Yeah. Everybody does that you don't pick pick nanna sharpened at both ends. Crescent that you have in a non religious way in your own home Christians. You don't. No, no. I don't believe you. Sorry. It's totally a secular thing. It's ridiculous. Of course. It's a. Whatever. But I I'm going to go out on the line. I'd be like this one's going to go the wrong way. I don't. I mean, I've just so it's it's not because of any expertise just, you know, I've just really jaded and cynical because recent decisions the civil asset forfeiture, not withstanding. So I'll go ahead. I wanted to Thomas was wrong segment. So I'm going to predict that it's going to go wrong way. Because they'll say like, oh, it's not Christian or something. I don't know. That's what will and Sarah looted that would be the far better outcome because as I referenced during the interview segment the American Legion. Brief again linked in the show notes argument. One a right is no clear standard governs this case. Right. The in other words, it is a it is a direct coal for the supreme court to say that the lemon versus Kertzman test. Which forty five forty eight years now has is what governs in cases. Like, this does not want for case. Like, I they they're just saying that what is the what is their justification for it? Not apply. Right. So they're argument involves the recent efforts by the supreme court to scale back the protections of the stablishment clause. Right. So for example, in twenty fourteen the supreme court decided a case called town of Greece versus Galloway, and that case that has nothing to do with monuments, or you know, ten commandments or giant crosses or whatever that had to do with the town of Greece opened up. It's it's a legislative session with a prayer friends of the F F R f was involved in that case those who believed in strict separation of. Church and state said obviously opening up with a chaplain delivering an invocation seems like a violation of the establishment clause here and the supreme court when out of its way to kind of carve what I would characterize as a very, very narrow exception. But what the advocates of co mingling religion in with the state have said, well, look like if if the supreme court didn't apply the lemon test to opening up legislative sessions with a prayer. Then maybe lemon just doesn't apply anymore. Maybe it just doesn't count. And and the way in which the American Legion is characterized it is that the that that the town of Greece versus Galloway decision stands for the proposition that that the examination is endorsement weather, a reasonable observer would perceive that the check. Challenged government action would have the purpose or effect of endorsing religion. That is whether the government action, quote sends a message to nodded here. It's that they are outsiders not full members of the political community and an accompanying message to adherence that they are insiders favored members of the political community notice that you could apply that test and still say right that endorsement like even if even if the question is one of sort of second class citizenship. I would think having a giant Christian monument when you enter a town or having a town that begins with a sectarian prayer before beginning legislative sessions is right sends precisely that message. Right. So it what makes it pernicious is that that that standard in my view is designed to sort of reinforce the the notions. Of Christian privilege that you're talking about. Right. That that if you're a part of the majority religion, it's easy to say. Oh, well, look like, we're not we're not excluding you. We're just you know, we're just to come on. Everybody uses crosses to Marquette gravesite stuff like that. And the lemon test look for all of the criticism. And again, a lot of the criticism directed at the leftists. I talked about this debate with Justin Walker came from the left in the nineteen seventies nineteen eighties. And and for that, you know, for all of that criticism Philemon test is very very clear, and you know, what this what I fear is that the supreme court wants to get rid of the clear test replace it with a more ambiguous one and then load up with a bunch of precedent saying that they rule that across isn't religious than that they get rid of the lemon test. But if they can just rule that crosses at religious every time what what is. Matter that we have a limit test. Yeah. I look it. Again, check metaphor point not that. That's a fair trek me, the strength of the lemon test, in my view is that it gives you multiple avenues. Right. Like, if if you feel any of the prongs of the lemon test than the than the entire law gets thrown out. Right. So if if a Bill lacks a secular purpose, right, then the law is inherently violative of the establishment clause. And so that's where we're talking about. You know, the the supreme court fudging it and saying constructing a giant cross at at which prayer meetings are held, and you know, I mean all the things that Sarah talked about, you know, you you have to kind of closure is, and and, you know, seal your ears to say that that has a secular purpose. But at least that keeping that in place. Will protect us from the, you know, actions of a legislature that, you know, have no articulate, you know, even even lying even making it up. I agree with you. You know, we've we've talked about this, right? Like fighting the holding action sucks and having the supreme court. You know issue a ruling that that that greatly weakens the purpose prong would be a bad thing. I think it would not be as bad as doing away with all three prongs altogether and replacing it with a single kind of a morpheus. Are we actively targeting, you know, minority faiths, and the nonreligious, and you know, that's gonna be super easy, right? This is this is a direct analogue, by the way to you know, what played out in in the supreme court's abortion jurisprudence cases, right Roe v. Wade set up a trimester. To reproach with really clear guidelines first verse trimester state can't restrict or inhibit in any way. A woman's right to an abortion second trimester states can restrict but not ban third trimester states can ban, and you know, that that got criticized again, both right and left as, you know, having an element of arbitrary district. Which of course, it does. But that's a much cleaner rule than what followed it which was Planned Parenthood versus Casey, which was at any point in in the the duration of the pregnancy. The state can do anything so long as it does not constitute a quote, an undue burden and we've seen twenty years of of of cases. Yeah. Saying, oh, well, you know, look requiring you to get an invasive ultrasound is not an undue burden requiring you to wait forty eight hours, not an undue burden requiring you to get consent from your parents or your spouse or. Assign off from a judge is not an undue burden and you know, that's to me if you replaced, you know, I think that that's a pretty pretty a direct analogy to to what I'm concerned is going to happen in this case to to a pretty clear standard of law. So. All right. Well, we've got to move on to our next segment in which we see how. See how activists Clarence Thomas wants to be had one beer at the party and had beers with and having severe with friends for just a meet up and have some beers drinking beer gladly do. I like for that like beer. I don't know. If you like your Senator or what do you like to direct one is center? What do you have any drank, beer, and and soul? Do so whatever. Yeah. Okay. Andrew a lot of people ask about this. Wow. What's happening here is? This is scary. As it sounded Clarence Thomas wants to overturn decades of libel law precedent yet. It's it's as bad as as everyone says it is. And then some because this is a currying in the context of the Bill Cosby allegations, which. Win your Clarence Thomas. I might think that you would otherwise want to stay clear of that entire area, but prepare he doesn't and is I think it's it's kind of not hard to read between the lines here. So so here's what happened Catherine may Mckee sued Bill Cosby because in twenty fourteen she accused Bill Cosby of having forcibly raped her her Cosby's attorney than responded on his behalf and wrote a letter that according to Mckee quote deliberately distorts her personal background to damage reputation, for truthfulness and honesty and further to embarrass harass humiliate intimidate and shame her and of quote, and that letter was leaked and became public Mckee, then filed a lawsuit in federal court for defamation. And Bill Cosby moved to dismiss and the the trial court as affirmed by the first circuit affirmed that dismissal and said under the New York Times versus Sullivan standard Mckee was part of a public controversy over the quote, sexual assault, allegations, implicating Cosby and was there for a limited purpose public figure and under the New York Times of Sullivan standard, which we've talked about on the show a lot limited purpose public figures are held to the same standard that a general purpose public figure is in in that area. Right. So for example, Thomas UN, I qualify kind of surprising, maybe, but you, and I are general purpose public figures. So if if somebody wants to liable we made it to the general purpose level, I think we have. We we we are, you know, posts of an awfully popular, you know, internet podcast internet radio show. I I certainly think somebody could argue that we were a general purpose public figure. But even if we weren't right, even if this show were a tiny show with a limited audience, you could certainly argue that we are limited purpose public figures in the area of the things that we comment on on the show. Right. And so that's the idea of the distinction between the the doctrines general purpose public figure Barack Obama Donald Trump Kim Kardashian. Bright, a limited purpose public figure is somebody who is not otherwise in the public eye. But in the thing in which the in a particular area, they are in the public eye, and therefore should be held to the standards that require you to prove actual. Malice in order to bring a defamation lawsuit to to kind of very briefly go back over that. Actual malice doesn't doesn't mean you have to prove necessarily the the the kind of common definition of malice, right anger or hatred. What you have to prove is that the body publishing. The allegedly defamatory information did so with knowing falsity or reckless disregard of the truth. And and I wanna take a quick sidebar to say, this is Thomas in his dissent says, you know, this is virtually impossible standard to prove. That's not really true, right? It. It's an easy standard to prove when you have behavior that that responsible journalists don't engage it, right? Which is which is to say if I if a if a media. Outlet negligently or reports something false about you and I- Thomas, and then we contact them and say, hey, we're not gonna sue you for this initial publication because it looks like he just got it wrong. But we're going to send you a cease and desist letter. We're going to show you that. In fact, you have it wrong, and we're going to request that you take it down. And if you don't take a death, we've demonstrated now that you know, that this is something that's false. And you still don't take it down. Then we can sue you for defamation. Right. And even public figures can do that. Right. And in my view that hits exactly the right balance that we want for public debate over issues that have a political component to them, right? Over matters for which we absolutely want to be able. To say, you know, we don't want powerful individuals who are in the public eye to be able to intimidate journalists and commentators into silence Clarence Thomas once that ladder outcome, right? He wants four. Public figures like Donald Trump to be able to sue on the same standards for for defamation as private individuals. The this this dissent from the denial of Sirte in Mckee case, again, not joined by any of the other justices. So maybe this is maybe there's a point in favor of our buddy, Corey Robin of Corey Robin of, you know, Clarence Thomas is an interesting, but terrifying guy, it is fourteen pages long. And as you go through it, right? Thomas says we should not continue to reflexively apply. This policy driven approach to the constitution. Meaning that New York Times. V Sullivan rule that you know has been good law for almost six decades. Instead, we should carefully examine the original. Meaning of the first and fourteenth amendments, if the constitution does not require public figures to satisfy an actual, STAN. In state law defamation suits than neither should we. And you know, and here you see on full display the principle that I keep beating the drum about on the show every couple of episodes. If you are a believer in this level of originalism than precedent means nothing, right? The fact that the supreme court and every subsidiary court has applied the New York Times of Sullivan standard since nineteen sixty four who cares about that? If it doesn't comport with what Clarence Thomas thinks the founding fathers meant than that case doesn't matter anymore. It's it's that's it's really really troubling. And and it dovetails I do not wanna dissect we've had requests from from listeners that that we dissect the the defamation lawsuit filed by nNcholas Sandman against the Washington Post. He's the Covington. Catholic kid, right? And look we have devoted enough time to stupid defamation lawsuits filed by racists complaining that they were being portrayed as racist. I'll link the complaint in the show notes, you can read it is. It is ridiculous garbage. But it's ridiculous garbage. Because of New York Times Celant, absent New York Times of Sullivan. There would be no way for a newspaper like the Washington Post, which by the way Sandman is suing them for two hundred fifty million dollars. Yeah. That was the purchase price is not. I I am one hundred percent certain this is it is not coincidental fifty million dollars in actual damages and two hundred million in punitive damages which was the purchase price that Jeff Bezos bought the bought the post for when when he acquired the Washington Post. So he's he's basically trying to sue them out of existence. And the Washington Post is gonna move to dismiss they're gonna win, but they're going to win on New York Times v Sullivan grounds. So that that is I think the importance of of maintaining it. I I don't think we're in any danger of losing that standard. But we have one one Justice who's willing to jettison it, and we have a president who you know, has openly and publicly said we need to we need to change the laws. So yeah. So there you go. Yeah. I don't know. I feel like maybe we should talk. Maybe that's a patron CUNY question or something. Because I I know people do want to hear more about that lawsuit. But but that will leave it for another time. I think it is time for our co favorite segment of the week linear new patrons dot com slash law. Nothing. Nothing better to get the the bad taste at your mouth and us being able to thank our new patrons. Yes. And we begin with Lauren. Jacob mightier. Rick taylor. Shane gadsby. Michael sullivan. Magna Carta is the cause of all your problems Thomas. Christopher bird. Susannah. Oh, that's a tough one. Sorry. Po hailing poa lane, maybe or Poge Elaine in something like that. Sorry. Matt Gatewood Matthew Bramson, the notorious B R G, David and David winder. Thank you so much your turn into. Yeah. Thank you to maxim soup. Co two congratulations on your and I'm going to read it this way one zero zero zero zero zero zero zero zero episode because I believe that is binary for two fifty six which is which is today. So we're we're we're celebrating a one hundred million in binary or whatever thanks to Terry Jones to Justin Turner. I don't know if that's the dodgers third baseman. But I like to think that it is. Hey, hey, Justin. If that's you you signed big contract, man. You could be a hall of Famer hall of fame. Patron? I don't mean baseball. I was gonna say, yeah. Why pledging at the that level up your pledge a little bit to buy his our LA's, Janet Kelly, Sherry, Emily har-? Well, Charles s Harare, James Ryan could neck oh and to Ted Cruz for human president twenty twenty. I hope we get outta funny site from twenty sixteen. I hope we get that again. Yes. Thank you, folks. So much hope you enjoy all the goodies. And thank you for coming on board. Okay. Let's find out if I did. Okay. On this question. I'm very curious about this one t t be here, we go. No, social this firm has ever failed the bar exam. Kidding? Yeah. So Thomas this question was personal injury. Case plaintiff slips falls outside of a store. We have used this hypothetical. You know, thousands of times on the show plaintiff alleged that the store was negligent in allowing the entry way to become slippery from snow tracked in from outside. And then before the lawsuit was filed the plaintiff threatened to sue the store's manager said, hey, you know, look, I get that there was less outside. But yeah, the one in the four inch heels like come on can't we settle this? Let's agree. I'll pay your medical. Bills. And and then you, you know, you drop these tort claims plaintiff refused at trial plaintiff seeks to introduce the manager statement that. Yeah. Okay. That was slush on the marble entryway. And you picked answer a no. Because that that that the statement will not be admissible in trial because it is a statement made in the course of compromise negotiations, and I am pleased to tell you that answer is exactly correct. I was nervous. Because of the before the lawsuit was filed thought there'd be some technicality. This is the time period place where these negotiations officially can't be part of the whatever. But not so I gotta right. Yeah. You you got it. Right. This is federal rule of evidence rule. Four eight. It is a rule that this kind of question is one that will trip up some lawsuits, but didn't trip you up and doesn't trip up anybody, right? Who is a regular practitioner for precisely the reasons you are ticketed on the show. Right rule. Rufo eight right. The one of the yes answers that you that you pondered over for for a little bit on is. They're going to be a technicality is the rule excluding offers of compromise. That's four zero eight does not protect statements of fact made during compromise negotiations. That is absolutely one hundred percent not belong for away protects not only the offer itself. But everything you do in connection with that offer. And and again, this is really really important, right? Like, these are how ninety nine percent of civil cases get resolved. And that is lawyers talk to each other and sometimes lawyers talk to each other with their clients in the room or lawyers will talk to clients and will say like and part of how you get somebody to the table. Is you say, hey. Look you may win on X. But even if you win on X, we're still gonna win on y z, and if you could parse that out, and then let them put on the stand you could win on x then no lawyer, whatever say that during and fewer cases would settle and you know, it would it would just it would be totally unworkable. So you absolutely cut through to the heart of it. Four eight meant to protect wide ranging discussions in in in efforts to compromise because the federal rules of evidence wants people to settle their claims out of court. And I love it. That's what I'm glad. I didn't I decide it's like when I recognize something legal concept. I usually even though there could be some technical way. It might be wrong. I kinda liked to do it. Anyway, like just go with that answer. Anyway, because the thrill of having remembered something in applying into question is just worth. Ability that I'll be trick. Just like last week. I Brill analyzes question. Got it perfectly. Right. Absolutely. All right. Thanks so much for that. And who is hopping you time machine and tell us who are lucky winner is for this week's t t. Justice thomas. I wanna point out. Exactly what I suspected would happen. Did in fact happen. Lots of people got this question wrong. A lot of those. I suspect lawyers law students who were over thinking it. This week's winner is unlimited rice pudding who did not get it wrong. Who says a for the same reasons as Thomas said, I remember the discussion in earlier episode going the same way. So if we're wrong, it must be here Clinton the matrix. Great reference. You got it. Right. Everyone should follow. That is at Tom Evans. Eighty T O M E V A N S eighty on Twitter unlimited rice pudding. Congratulations forgetting a deceptively. Tricky question. Correct. And of course, congratulations to you Thomas. Think so much again to our guest Sarah Henry for coming on giving us a little insider breakdown of the Bladensburg totally normal religious cross case and thanks for listening. Thanks, most of all to our patrons and see folks real soon for a topical rapid response. Friday. See you then. And if if you'd like to to stop by the HA protest at the supreme court tomorrow Wednesday, the twenty seventh I will be there. I will be speaking for couple minutes and get a chance to come up and say, hi, other great speakers are going to be there, buddy. Indra Seidel will be there. It's it's great as soon as they move that supreme court to California where it should be. I be there. All right. This has been opening arguments with Andrew and Thomas if you love the show and want to support future episodes, please visit our patriarch page at patriot dot com slash off. If you can't support a Spanish -ly, it'd be a big help. If you leave us a five star review on itunes, Stitcher, or whatever podcast delivery vehicle news, and be sure to tell all your friends about it for questions, suggestions and complaints Email us at open arguments at gmaiLcom, the show notes and links on our website at WWW dot open. Argh dot com be sure to like our page on Facebook and follows on Twitter at open arcs until next. This podcast is production of opening arguments media LLC alright reserved. Opening arguments is produced with the assistance of our editor brains Ige, our production assistant, Ashley Smith and our researcher Deborah Smith special. Thanks to research Gomez in the entire OA Wicky team, follow them at at a Wicky and a big thank you to our Facebook group, moderators Elisha cook, Natalie Newell, Emily waters. Eric brewer and Brian check out the opening arguments Facebook community and finally thanks to Thomas Smith for creating the show's theme song, which is used with permission.