Transcript of OA439: The End of the Lemon Test?

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Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 439.  I’m Thomas, that’s Andrew.  How’re you doing, sir?

Andrew:         I’m fantastic, Thomas, how are you?

Thomas:         Are you fantastic because this is Trump Free Tuesday?

Andrew:         [Laughs] This is almost entirely Trump Free Tuesday.

Thomas:         Almost, I love it! [Laughs]

Andrew:         [Laughs] I blame you-

Thomas:         Hey!

Andrew:         -for not letting me record for two plus hours on Thursday’s show.

Thomas:         Yeah, and I blame you for putting in something like ten bullet points in a show-

Andrew:         It’s true.

Thomas:         Which I know!  I could’ve told you this, I could’ve spared you.  You’re not gonna get to more than five bullet points in a show like ever.

Andrew:         [Laughs] Well, we have five leftovers for us to cover in the A Segment.

Thomas:         [Laughs] So this is actually gonna turn into entirely a Trump episode?

Andrew:         [Laughing] No!

Thomas:         We’ll push off the other stuff.

Andrew:         No no no.  I really do wanna cover the case because it’s in the news and I think it’s really perfect.  It’s a classic “this is why we started OA.”

Thomas:         Okay.

Andrew:         I really, really wanna get there; we’re gonna get there.

Thomas:         Okay.  Well sorry about that, I know there’s a little bit of false advertising last week.  We had stuff that had to be pushed to this episode, it’s not all about Trump but obviously Trump-adjacent so if you’re terribly offended plug your ears for the first segment here while we discuss that stuff.  Then we’re gonna be talking about what Andrew teased last week, a bold prediction that’s gonna be negative. 

I will say this, preshow announcement, I sent one Andrew Torrez a message the other day that said “Andrew, can we get Britney Spears law on this show?”  This is all the rage, Britney Spears, the court battle over … I don’t even know what.  Andrew was telling me that we may be able to get a Britney Spears breakdown very soon, is that true?

Andrew:         Yeah.  I do know, this has to do with the court having appointed a conservator over Britney Spears’ financial assets and her efforts to have that conservator, which includes her father, removed.  I was utterly unaware of any of this, there’s a hashtag, #freebritney, movement.

Thomas:         Yeah.

Andrew:         I have fallen down the rabbit hole and I love it.

Thomas:         I also saw that right after that court decision went the wrong way for her that a single was released or something?  And that’s like woah, what’s going on?  I’m sure there’s all kinds of story here.

Andrew:         [Laughing] What we’re waiting on – this is how much I love you people!  I had to sign, this is – Britney Spears lives in Los Angeles so this is in state court in California.  I had to sign up for the Court of Common Pleas of the State of California for Los Angeles County state website to get access to the documents and I’ve got to pay them a whole ton of money.

Thomas:         Wow.

Andrew:         I just couldn’t get it done in time for this week’s episode, but people, this is what you have to look forward to!

Thomas:         Yeah!

Andrew:         You’ve got deep dives on eminent domain coming up, we had to bump the baseball law story-

Thomas:         I’m pretty sure Joe Biden ran a campaign ad that was like “OA will be able to do Britney Spears law if I win.”  I’m pretty sure that was one of the ads.  It’s morning in America!

Andrew:         [Laughs] No doubt that would be enough to have put him over the top in Georgia.

Thomas:         What a teaser!  Well, can’t wait for that.  In the meantime we need to get to our almost Trump Free Tuesday.

Andrew:         [Laughs]

Breakin’ Down the Law – Election Updates

[04:56.0] [Segment Intro]

Thomas:         Alright, Friday leftovers Andrew.  Let’s pop ‘em in the microwave, what’ve we got?

Andrew:         Yeah, you may have heard the Associated Press called the races, the Democratic Senate races in North Carolina and Alaska, which we said were open and, you know, not a great chance for a Democratic pickup but not mathematically impossible?  I have been tracking the D.C. lawsuit regarding the U.S. Postal Service and I also got some help from Robert Edwards, a listener who did some of the number crunching.  Looks like, and you should be angry about this, it looks like the post office prevented – delayed in North Carolina and prevented in other swing states roughly 2% of mail in ballots from arriving on time.

Thomas:         Wow.

Andrew:         Those got counted in North Carolina because North Carolina extended their deadline for counting the votes to 9 days after the election.  Ballots that are postmarked election day are, as of the time of this recording, still coming into North Carolina, it’s just not enough to put Cunningham over the top.  But 2% of mail in ballots is a real number, it is way bigger, by the way, than the recount margins that Donald Trump seeks to overturn in Georgia, in Pennsylvania, and in Michigan.

Thomas:         Hmm.

Andrew:         Probably larger than the margin of victory in Arizona.  Yeah, part of the Republican plan was to monkey with mail in ballots that are overwhelmingly Democratic and they pulled that off.  Probably not enough to change the Senate.  By the way, answering that question, if it turns out that there are more ballots that were thrown in a bin somewhere and they show up?  Conceding does not – that’s not an official legal act.

Thomas:         Yeah, ‘cuz Cal Cunningham conceded, seemed a little early maybe but it was disappointing.  But that doesn’t prevent – actually if I remember correctly, I think Gore initially conceded to Bush in 2000 and then un-conceded.

Andrew:         Yup, you can un-concede.

Thomas:         Cool!

Andrew:         It affects the narrative but it does not affect-

Thomas:         You know, I’m gonna concede this week’s bar exam question, I don’t think I got it.

Andrew:         [Laughs]

Thomas:         Oh no I’m not!  Un-concede!  It works.

Andrew:         [Laughing] I like it!  Next question, we received a bunch of different times, I do not have time, I had a big long – well not a big long, but I had a longer segment than this planned on why control of the Senate matters.  We set that out a week ago in episode 437, go back and listen to that episode.  Lots of progressive organizations are circulating documents and stories, some of which were prepared before the election, on stuff Joe Biden can do without the Senate.

Thomas:         Mm-hmm.

Andrew:         I don’t mean to suggest that it is nothing, but, like we showed on Friday’s show, it is likely not symmetrical to what Trump was able to do-

Thomas:         Right.

Andrew:         -in his first two years because they had the Senate.  If you’re thinking you can come in and use the Congressional Review Act, no you can’t.  If you’re thinking you can come in and make a whole bunch of judicial appointments without the Senate-

Thomas:         Well not only that, I’m worried about, as we covered last week, the one-way ratchet, the one-way door of okay, Trump might’ve done this with an executive action but if Biden tries to undo it, well, the Supreme Court’s gonna say “no can do, mister.”

Andrew:         That is correct.  Without something like the Congressional Review Act what you have to do in order to get a clean slate is you have to engage in new administrative rulemaking-

Thomas:         Mm-hmm.

Andrew:         -which requires research, findings, writing ‘em up, notice, comment, an opportunity to be heard, all of that takes time and all of that is time where kids are still being put in cages, where our Trans military service members are at risk of being kicked out. 

Thomas:         Mm-hmm.

Andrew:         It’s just horrible things that Trump has done that we may not be able to undo with the stroke of a pen.  Yes, push Biden to do as much as you can by executive action, but if you’re thinking he’s gonna have available to him the same stuff that was available to Trump, you’re wrong on that.  It matters, those Georgia Senate races absolutely matter, which leads to kinda the third question that we have gotten, which is if it’s a 50/50 tie can Vice President Kamala Harris (god I love saying that).

Thomas:         Mm-hmm.

Andrew:         Can Vice President Harris cast the tiebreaking vote for Senate Majority Leader?  Yes.

Thomas:         Awesome!  I think we might’ve already answered that, but that’s okay just in case.

Andrew:         Yup.  Worth answering again.

Thomas:         There’s no “tie goes to the monster from Pans Labyrinth” rule that we don’t know about?  Okay.

Andrew:         [Laughs] Um, also, linked in the show notes, it’s linked in Ms. Ashley’s extra stories, Joe Biden has announced and appointed over 100 people to his transition team for each of the major executive agencies.  You can look at the list of those people.  If you want to get involved you can contact these folks.  You can submit your resume; you can work for this White House.

Thomas:         I can?  Alright!

Andrew:         Despite the fact that Trump is trying to – and we’ve all heard the story of the Trump administration official over at the Government Accounting Office that is not authorizing the release of funds and materials for transition.  That doesn’t mean Biden isn’t going to work, and this is what a normal administration does.  They start working on transition ‘cuz there’s a lot of work to be done, and I am encouraged that they’ve hit the ground running.

That gets us to our last story that a lot of folks have asked about.  That is big law firms that are withdrawing or under pressure to withdraw from representing Trump in these garbage lawsuits.

Thomas:         Mm-hmm.

Andrew:         We talked about how these lawsuits are terrible, we’ve talked about how, you know, they’re sort of skirting the line on what they can say and then lawyers have to show up in court and answer questions like-

Thomas:         [Laughs]

Andrew:         “Are you contending that there’s any fraud?”  “Well, depends on what the definition of ‘fraud’ is.”

Thomas:         Well not really, not exactly.

Andrew:         [Laughs]

Thomas:         I’m not not not.  [Laughs]

Andrew:         Right!  I’m not not licking toads.  And a lot of that has focused on big law firms.  Snell & Wilmer, which is I believe the largest law firm in Arizona, was representing Trump in Maricopa County where they had had the “they threw out our ballots with sharpies” or whatever.  They very publicly said yeah, we’re withdrawing from this, this is lunacy and we don’t want any part of it.

On the other hand, Jones Day, may be the largest law firm in the world.  Certainly incredibly prestigious.  Our buddy Devin Stone over at Legal Eagle tweeted out that he’s never been happier that 14 years ago he turned down the chance to work for Jones Day.

Thomas:         Hmm.

Andrew:         Good for him.  They put out a statement that defended their role in the Pennsylvania election litigation, I’ll link it in the show notes.  It’s disingenuous and it’s nonsense.  It’s “we don’t represent the Trump administration; we represent the Pennsylvania Republican Party and the Supreme Court has said this is a meritorious issue.”

Thomas:         Mm-hmm.

Andrew:         Here’s my take on this.  I worked for Covington & Burling, you guys all know that, and when I went to Covington & Burling – as far as I know they probably still do – the firm represented the Tobacco Institute.  Now I know the Tobacco Institute is today called, like, “The Coalition for Healthy Lungs and Rainbows.”

Thomas:         Yeah! [Laughs]

Andrew:         You know, it was-

Thomas:         That sounds great, I’m donating to it right now!

Andrew:         Yeah! [Laughs] It was, at the time, the lobbying arm for the tobacco industry.  There were partners, despite the fact this was a building in 1998 when I was there, in Washington D.C., there were partners that smoked in their offices. [Laughs]

Thomas:         Wow.

Andrew:         I’m pretty sure that violated the building code.  One of the things you were allowed to do as an associate is you were allowed to say at any point in time “hey, I’m not super comfortable working on TI work.”  The firm respected that.

Thomas:         Hmm.

Andrew:         They made pitches to you, they were like “you know, you do work for TI you get more of a chance to argue motions because there are associates that won’t do that.”  But at the end of the day, and I think most big firms are pretty similar.  They take on corporate clients and your role as an associate is to sort of raise the issue of “I don’t know that I’m super comfortable working on this case.”  Most firms that I know of respect that decision.

I think I mentioned here that I was asked to go work on the-

Thomas:         Oh yeah.

Andrew:         The Bush v. Gore case.  Bobby Burchfield was a partner I did a lot of work for and he was coordinating one element of the Bush legal team work and he asked me, he said “you wanna come down to Florida and work on Bush v. Gore?” and I said “only if I can sabotage it!”

Thomas:         [Laughs]

Andrew:         He laughed and said “okay, well we’ll see who wins in the end” and I was like “yeah, well, alright.”

Thomas:         [Laughs]

Andrew:         Here’s where I come down.  I think it is a very, very good thing to have public pressure on firms like Jones Day to say this is a civil client, this is not you’re representing the murderer and everyone’s entitled to a lawyer.  You’re not entitled to a lawyer when you wanna do stupid things.

Thomas:         Yeah.

Andrew:         There is – I have given a shoutout on this show, I used to sit on the board and I am a big supporter of the Public Justice Center and one of the projects they have that I continue to support is called the Civil Gideon Project, the idea that for certain kinds of civil cases you should be entitled to a government appointed lawyer; for things like child custody cases that involved rights that are frequently as important to people as whether you go to jail or not.  I certainly know I’d rather go to jail than lose my son.  I imagine you probably feel similarly. 

That underscores, we do not have that.  You do not have a right to a lawyer in civil cases, and you certainly don’t have it when you are a sore loser who’s trying to overturn a democratically elected, the democratic results of an election.  Bringing public pressure is the only thing that we really have on these big firms, we’ve gotta convince them that the economic value of taking Donald Trump’s money is not worth the economic harm of losing potentially other clients.  That’s where I come down on that.

I do think it is not fair to look at and draw any kind of adverse inference about any lawyer who works for Jones Day, about other parties who happen to be represented by Jones Day.  If I ran a corporation and I’d hired Jones Day to be my legal time I would certainly be contacting them and say “you know, we’re gonna reevaluate whether we wanna continue with you as counsel if you’re representing Trump in these insane lawsuits because that’s bad for us, it’s bad for our business,” but I don’t know if I was in the middle of a lawsuit if I would fire them on the spot, you know?

Thomas:         Hmm.

Andrew:         That would prejudice my interests, my company interests, and I have a fiduciary duty to my shareholders to do what’s best to prosecute that litigation.  You know, it’s not like – all of this is a long-winded way of saying The Law Offices of P. Andrew Torrez represented Donald Trump then you could impute that to everything we’ve ever done.

Thomas:         I would no longer listen to the show.

Andrew:         Yeah, you shouldn’t!  You absolutely shouldn’t.  If I ever, you know, take on Donald Trump as a client, people shouldn’t listen to OA anymore.  You should impute that to the entire firm.

Thomas:         I’ll still be on it, I’m just not gonna listen. 

Andrew:         [Laughs]

Thomas:         [Laughs]

Andrew:         But go easy on – particularly young associates who are out there, they don’t have a choice in who the firm takes on as clients.  You may have – and I know there are, I have friends at Jones Day, very liberal people that I imagine are doing the best they can who are junior partners who have an undersized voice in the management committee in terms of what they take on.  Keep the pressure on Jones Day institutionally, but that’s where I come down on big law representing Trump.

Thomas:         Alright well everybody can unplug their ears if you didn’t wanna hear about Trump, we’re done with Trump and it is now officially now a Trump Free Tuesday. 

Trump-Free Tuesday – Andrew’s Bad Prediction

[19:18.6] Thomas:     So, Andrew, you haven’t even told me what this is about.  This is a secret prediction that’s bad, what’s the main story here?

Andrew:         Here’s the main story and I want to give a mild content warning.  We are about to discuss the legal ramifications of a civil lawsuit, intentional infliction of emotional distress, where the underlying conduct was sexual abuse.  We are not gonna get to anything that is graphic, but I want to warn you on that content. 

With that in mind, you may have seen this case in the news.  This case was just heard at oral argument in the Supreme Court of Utah, and it is a case – I’m not even gonna read the caption because the Complaint does not block out the woman’s name but I’m uncomfortable repeating it.

Thomas:         Hmm.

Andrew:         Because it is a case involving the Jehovah’s Witnesses in Utah.  Here are the facts of the case.  The plaintiff was 15 years old; she was raped by a member of the Jehovah’s Witnesses.  The Jehovah’s Witnesses practice what they call church discipline over – the word they use is “porneia,” P-O-R-N-E-I-A, the same root word as pornography, and it means sexual sin.  What Jehovah’s Witnesses did to this poor woman was interrogated her for 45 minutes in which they played for her [Sighs] the recording of her sexual assault.

Thomas:         It was recorded?

Andrew:         Yeah, it was recorded.

Thomas:         Wow. 

Andrew:         The argument was – again, remember, she was 15 years old, not legally capable of consent.  The argument was we are parsing through from this recording that you consented and therefore you are guilty of the sin of porneia, therefore we’re going to kick you out of the Jehovah’s Witnesses.  Those are the underlying facts of the case, and again I apologize for the icky nature of this. 

This woman has done what every single person should do in this situation, and that is sue the ever-loving crap out of The Jehovah’s Witnesses.  It is an open and shut case, and we have talked about how intentional infliction of emotional distress, the elements of that civil tort is that somebody engages in extreme and outrageous conduct that causes you severe psychological distress.  Forcing you to listen to your rape for 45 minutes is 100%-

Thomas:         Sounds like a case closed.

Andrew:         It’s a case closed, except [Sighs] the Utah trial court and the Utah intermediate court, probably not thinking about Jehovah’s Witnesses in the State of Utah, but probably thinking about roughly equivalent practices in which the Mormon church engages, held that the Jehovah’s Witnesses were immune under the First Amendment from being civilly sued.

Thomas:         Oh my god. 

Andrew:         If you’re thinking about this, this is where this becomes a classic OA story, why on – I’ve heard people say is this a free speech issue?  It isn’t.  The decision that came out of the Utah intermediate Appellate Court held that this was a violation of the establishment clause.

Thomas:         [Sighs]

Andrew:         If you’re sitting there thinking “well that doesn’t seem – I’m not sure that I get that,” here’s how it breaks down.  The establishment clause, as interpreted from Lemon v. Kurtzman, 1972, we’ve talked about the Lemon test 100 times on this show, it’s in danger of being overturned at the Supreme Court and this is my prediction: this is the case that will get it overturned because of these facts.

The Lemon test says that state action violates the establishment clause if it does any one of three things.  First, if the law is intended to benefit or to hinder religion.  That is, the law is not intended to be secular, religiously neutral, that’s called the intent prong.  Second, if the principal effect of the law is to benefit or to hinder religion; that’s the effects prong.  Third, if it (quote) “excessively entangles the state with religion.”

That, I need to tell you, has always been kind of the weirdest aspect of what the Lemon test does and the most criticized aspect.  William Rehnquist, dating back to the late 1970s, early 1980s, repeatedly dissented in cases and said “I don’t think the third prong of the Lemon test is good law.”

Thomas:         Mm-hmm.

Andrew:         Very, very controversial, but let me give you the best-case scenario for the application of this third prong, the no excessive entanglement with religion.  That is a case called Serbian Eastern Orthodox Diocese for the United States of America and Canada v. Milivojevich.  I apologize for butchering that Serbian name.  Supreme Court decision. 

What happened was the Bishop, Milivojevich, was defrocked for heresy by the Serbian East Orthodox Diocese.  He contended that that was all just a pretext, he wasn’t a heretic and they just wanted to fire them so he sued them for wrongful termination

Thomas:         Hmm.

Andrew:         The Supreme Court said guys, the one thing this court is not going to do is (quote) “evaluate conflicting testimony concerning internal church procedures.”

Thomas:         Yeah.

Andrew:         I can think of nothing for which the Supreme Court is less qualified to do than to determine whether somebody’s a heretic or not.

Thomas:         Yeah.

Andrew:         That’s the appropriate – that’s the best-case scenario for the application of the excessive entanglement prong.  It’s to say yeah, look, if something causes us to have to figure out if you’re a heretic or not, you know what?  We’re just gonna be like-

Thomas:         Nah.

Andrew:         Uhh, pass.

Thomas:         Yeah.

Andrew:         The Utah intermediate Appellate Court said “well, that’s kind of what’s happening here.”  You’re engaging, you have alleged that The Jehovah’s Witnesses have committed a tort against you by engaging in this internal church discipline and that requires us to evaluate whether these internal church procedures are aspects of their religious faith or not. 

I’m gonna read to you from – this is the intermediate Utah appellate opinion.  It says (quote) “Some tort claims do not run afoul of the Establishment Clause because they do not require any inquiry into church practices or beliefs.  For example, ‘slip and fall’ tort claims against churches have been upheld because the tortious conduct was ‘unrelated to the religious efforts.’”

Thomas:         Although I’m surprised the church wouldn’t try to like, “Oh no!  Part of our religion is uh … gravity is a little- try to get out of it.  [Laughs]

Andrew:         [Laughing] Yeah, right.  “But the Utah Supreme Court has rejected tort claims against church entities for ‘clergy malpractice’ and other negligence-based torts that implicate policies or beliefs of a religion.  ‘[I]t is well settled that civil tort claims against clerics that require the courts to review and interpret church law, policies, or practices in the determination of the claims are barred by the First Amendment under the entanglement doctrine.’”  That is the third prong of the Lemon test. 

Now I’ve read that underlying case and I want to tell you, that is an insane interpretation of the law. 

Thomas:         Hmm.

Andrew:         To understand that it is insane, just replace “rape” with “murder.”

Thomas:         Right.

Andrew:         You hand over the baby, the Priest is like well, we’re gonna baptize this baby, and then hands you back a deceased child.  You would not be barred from bringing a wrongful death suit anywhere.

Thomas:         I would hope not, Andrew.

Andrew:         Yeah.  You would say “guess what?  Church practices do not get to include murdering babies.”  The idea that because the underlying tortious conduct refers to a church practice is preposterous that that means it means that it is excessive entanglement.  We do not have time for me to go through all of the myriad ways and Supreme Court decisions that have held to the contrary.  There is a long and pretty robust history at the Supreme Court that says yeah, being a church isn’t a get out of jail free card for doing bad stuff.  That’s ultimately the proper application of the Lemon test.

This has now gone before the Utah Supreme Court.  I believe, based on the underlying precedent, that the Utah Supreme Court is going to affirm the Utah intermediate Appellate Court.  I could be wrong on that; I would like to be wrong on that?  But I think they’re going to affirm and they’re gonna say her IED claim is barred. 

But – and we’ve talked about this before – as a matter of civil procedure when a State Court is interpreting – these are not claims based on the Utah constitution, this is an interpretation of the Establishment Clause of the U.S. Constitution.  Where a state Supreme Court purports to interpret the U.S. Constitution you may petition for cert to the U.S. Supreme Court.  Again, you can see this coming as a slow-motion train wreck.  The posture in which I imagine this is gonna go forward is this young woman is going to be denied relief by the Utah Supreme Court.

Thomas:         Wow.

Andrew:         And she’s gonna tell her lawyers “I wanna petition to the U.S. Supreme Court,” and it is going to go up to the U.S. Supreme Court and, again, I think you’re gonna get at least two votes?  At least … one vote?  Even the court’s liberal wing has not been great on establishment clause issues lately.  You’re going to get at least a dissent from Sotomayor, at best it will be 6-3.

Thomas:         Wow.

Andrew:         But it may be 8-1-

Thomas:         You’ve gotta be kidding me.

Andrew:         In which the Supreme Court will reverse and will say yes, absolutely you have the right to bring an IED lawsuit against Jehovah’s Witnesses for their conduct because there’s no such thing as the Lemon test.

Thomas:         Oooh!  So, you’re saying it’s gonna go the right result-

Andrew:         Absolutely.

Thomas:         But in the process undermine other future cases?

Andrew:         And what they’re going to say is “we explicitly overrule Lemon v. Kurtzman, that is not how we understand the Establishment Clause,” and they’re going to replace it and codify it with the insane test – test is not even the right word – the insane standard, words, language, that Kennedy came up with that you are owed a “respectful and neutral consideration of your religious beliefs” and the Lemon test is gonna be gone. 

Everybody on the Supreme Court is gonna be stuck in a tough spot.  Look, there’s a way out of this.  There is a narrow path out of it that says yeah, the excessive entanglement prong is still valid, Lemon v. Kurtzman is still good law.

Thomas:         This case doesn’t excessively entangle us in religion.

Andrew:         Yup, yup.

Thomas:         Easy.

Andrew:         But that will not get a majority of votes from the Supreme Court.  What will is yeah, it’s time to get rid of the Lemon test.  Again, I said at the outset of this segment, I’m not sure that the Lemon test, particularly the excessive entanglement prong, I’m not sure the constitutional justification for that is fantastic, although again I gave the scenario under which I think it’s appropriate.  Let’s not adjudicate whether someone’s a heretic or not.

Thomas:         Mm-hmm.

Andrew:         But I certainly think it has been a workable doctrine for 50 years and it’s about to be replaced with a … well what strikes the conservative Christians on the Supreme Court as not being sufficiently respectful of conservative Christianity?  We’re gonna be way, way worse off as a result. 

This is the case that’s bubbling up, that’s what’s happening, and I want you to understand it because there’s been a lot of media coverage.  The underlying decision is sort of difficult to interpret, and this is one of these where, you know, when the result comes down there will, and there should be, outrage, but I suspect the remedy is going to be much worse for us in the long run.

Thomas:         Yeah, what makes this kind of difficult is the outcome will be good for the person, the victim involved.  It’s like oh, yeah, you get this relief of you do get to sue them for intentional infliction of emotional distress, but the reasoning will be it’s because there is no such thing as too much entanglement with religion or something.  Is that what you’re saying?

Andrew:         That’s exactly right.  That’s what we have-

Thomas:         Okay, so the obvious answer, like you’re saying, is they should just rule “oh no, in this case it’s obvious that this is fine and it’s not excessive entanglement,” not “oh, therefore in all cases we’re getting rid of the third prong of the Lemon test.”

Andrew:         Right.  This is from paragraph 15 of the Utah Appellate Court decision.  This is where they apply the excessive entanglement prong to the facts of the case.  They say, “Allowing [Plaintiff’s] claims in this case to be litigated would require the district court” (the trier of fact) “to unconstitutionally inject itself into substantive ecclesiastical matters.”  Again-

Thomas:         [Scoffs]

Andrew:         I just want you to insert instead of what this woman went through, insert the Catholic Priest drowns the baby.  

Thomas:         Yeah or, by the way, don’t need to substitute anything.  It’s just as stupid.

Andrew:         [Sighs] I agree.  You can hear the outrage because what they did was outrageous and it should not be a problem.  So, continuing: “[Plaintiff] argues she is not challenging the Church’s ability to determine what constitutes ‘sinful behavior,’” (that’s true) “its ability to convene a judicial committee to investigate whether a member has engaged in ‘sinful behavior,’ or its ability to punish members based on a finding of ‘sinful behavior.’”  By the way, that’s all true!

Thomas:         Mm-hmm. 

Andrew:         The difference between this and the Serbian Orthodox case is she’s not suing the Jehovah’s Witnesses for disfellowshipping her.  That’s what they do, by the way, they say “We know, you were 15, you were raped but you wanted it and so this is a sin.”

Thomas:         Jesus christ. 

Andrew:         “So we’re gonna punish you by kicking you out of The Jehovah’s Witnesses,” and by the way when you do that, when you disfellowship someone?  That means her family members-

Thomas:         Yeah, your family, yeah.

Andrew:         -are required to shun her on the street.  It’s – my blood pressure’s already up.  It’s terrible.

Thomas:         I’m not a big fan of this whole religion thing, Andrew.  Not a big fan, especially this one.

Andrew:         Yeah, it’s not great.  She’s not suing over that.

Thomas:         Yeah.

Andrew:         She’s not saying “you weren’t allowed to kick me out.”  She’s saying, yeah, great!  I don’t wanna be in your crazy club anymore.  But you’re not allowed to kick me out by committing and independent tort while you do that.”

Thomas:         Yeah.

Andrew:         You’re not allowed to subject me to psychological torture when you kick me out, and that – the fact that we’re-

Thomas:         Case closed!

Andrew:         She’s lost twice!

Thomas:         Straightforward as could be!

Andrew:         She lost twice making that argument!

Thomas:         Wow.

Andrew:         Here’s what the Utah intermediate Appellate Court – again, this is-

Thomas:         Not a big fan of Utah, Andrew!  Not a big fan.

Andrew:         Yeah, well… “But [the Plaintiff] asks the fact-finder to assess the manner in which the Church conducted a religious judicial committee, which requires it to assess religiously prescribed conduct.”  Again, that’s nonsense!

Thomas:         Yeah.

Andrew:         That’s saying, right? [Laughs]

Thomas:         Hey, our excommunication process involves beheading!

Andrew:         Right!

Thomas:         Don’t criticize our religious practices.  You can’t come in here and tell us how to excommunicate someone, it involves beheading, that’s our religion, get out of here courts!

Andrew:         Yeah.

Thomas:         Same argument.

Andrew:         It is 100% the same argument, but I will tell you the cases they cite here, again distinguishable but here are the holdings.  Bryce v. Episcopal Church holding that a plaintiff’s sexual harassment lawsuit was properly dismissed because the statements were not purely secular disputes with third parties, but were part of an internal ecclesiastical dispute and dialogue protected by the First Amendment. 

Stepek v. Doe, holding that resolving this defamation dispute would involve the secular court interfering with the church’s internal disciplinary proceedings, where the plaintiffs claim is based on statements made during those internal disciplinary settings. 

And In re Godwin, In re Goodwin, dismissing an IIED, Intentional Infliction of Emotional Distress, against a church for the method in which it punished a member because it would (quote) “require an inquiry into the truth or falsity of religious beliefs,” (end of quote).

Now what I want you to notice about those three things is that was a 10th Circuit opinion, an Illinois Intermediate Appellate Court opinion, and a Texas Intermediate Appellate Court opinion.  In other words, after a comprehensive review of every case ever brought under the First Amendment in applying the excessive entanglement prong to tort cases brought against church officials, the Utah Appellate Court only found three that could arguably support this position.  This is not great legal analysis. 

You know, if this were in a court that I trusted you would say, there’s the path we’ve outlined, I feel reasonably confident, and let’s be clear about this, the Mormon church, you know we’ve had Bryce Blankenagel on to talk about the worthiness interviews that the Mormon church conducts on a regular basis and the progress they have made in having those interviews be conducted now with open doors as opposed to closed doors?  In which teenagers are asked about their sexual activities.  It’s grotesquely inappropriate, it is in the news, it will 100% be in the minds of the Utah Supreme Court.

Thomas:         Right, right.

Andrew:         Which, by the way, as far as I can tell every sitting member of the Utah Supreme Court is Mormon.  Again, there’s nothing – before Justin Walker fires off an angry email to me, there’s nothing wrong with being a Mormon and sitting on the court unless you put your thumb on the scale for your religious beliefs.  I am not saying-

Thomas:         I would argue it’s a little unhealthy to have an entire – if truly the whole court is the same faith, that’s bad.

Andrew:         I think that’s bad, but-

Thomas:         By the way, the same faith that, what, didn’t allow Black people in until the 70s roughly?

Andrew:         1978.  Not in, but they had separate but inequal-

Thomas:         Yeah. 

Andrew:         They were allowed to be members of the religion, not do the main thing.

Thomas:         I’ll accept Justin Walker’s email or whatever.  I think it’s bad if the whole court is people of that one faith, that’s bad.

Andrew:         Yeah, yeah.  But I am not saying that Mormons can’t fairly adjudicate disputes.  I am saying that I think this dispute will tee up something that has also been very public criticism of the Mormon church.  Look, I’d love – I’m Optimist Prime here, I’d love to be wrong.  I’d love for the State of Utah to say “we are, in applying Lemon v. Kurtzman, that the excessive entanglement prong does not operate as a complete bar to tort lawsuits simply because the tortfeasor is acting under the guise of a religious belief.”  Or even acting under a sincerely held religious belief, and use the yeah, if we excommunicated you via beheading that would not be prohibited.

Thomas:         Can’t evaluate!  Too much entanglement, Andrew! 

Andrew:         Yeah.

Thomas:         If you come in and tell me how to do my beheadings, you’re entangling yourself in my religion, no can do.

Andrew:         That’s where we want it to go.

Thomas:         Also, I’d like to point out we wait until episode 439 to introduce the term “tortfeasor?”

Andrew:         [Laughs]

Thomas:         I swear to you I’ve never heard – I’m pretty sure I’ve never heard “tortfeasor.”  We could’ve been throwing around “tortfeasor” this whole time?

Andrew:         We could have!

Thomas:         Aw, man!

Andrew:         Well, now we know what’s coming.

Thomas:         It reminds me of like Canadians.  “You hosier!”  It’s like “You tortfeasor!”

Andrew:         [Laughs]

Thomas:         It would be a good – in the group it’ll be a good insult, I think.

Andrew:         I like it!

Thomas:         Good natured insult. 

Andrew:         There you go.

Thomas:         Alright you tortfeasors!  Have we finished with this horrible case and bad prediction?

Andrew:         We have. 

Thomas:         Cool.  Religion sucks.  Okay, anyway – not your religion, I’m sure all your religions are great, it’s just this one, I’m sure.

[42:45.3] [Patron Shout Outs]

T3BE Answer

[53:25.2] [Segment Intro]

Thomas:         And now it’s time for T3BE, answer time!  Let’s see if my instinct on this one was correct.

Andrew:         So, Thomas, this was a – one of the shortest questions.  You were correct, not only is it a hearsay question, it gave you the answer but asked for the best justification.  A cyclist was hit by an employee, sued the corporation, and while the bicyclist was in the hospital recuperating from her injuries the driver of the car visited her and said “I’m really sorry for what I did.”  The employee then testified that was in fact what the employee said.  When the employee was at trial and testified that he, in fact, exercised due care the question was why is the cyclist’s testimony relating what the defendant employee said admissible to prove negligence?

You had four options here, you eliminated A, as “it’s a prior inconsistent statement.”  Good elimination, and good elimination on a really, really narrow ground here.  Because this is inconsistent.

Thomas:         Yeah.

Andrew:         When the employee gets up and testifies “I absolutely drove carefully,” you can do the [Impersonation] “Mr. Simpson I’m confused!”

Thomas:         [Laughs]

Andrew:         But the question says “why is the testimony admissible to prove negligence?”

Thomas:         Ohhh!

Andrew:         Statements that impeach do not prove the underlying substance.

Thomas:         Oh man, I lucked into that answer.

Andrew:         Yeah, really-

Thomas:         I can’t take credit for that!

Andrew:         [Laughs] Really, really good. 

Thomas:         Wow.

Andrew:         I suspect a lot of lawyers may have picked inconsistent statement.  You also eliminated D, statement of a then-existing state of mind.  Also good elimination, because while that’s true, you can admit hearsay to say yeah, he came in and he was sorry, she’s not trying to admit the statement to prove that the defendant was later sorry. 

Thomas:         Hmm, yeah.

Andrew:         She’s trying to prove negligence.  Again, those last couple of words are really what’s key here.

Thomas:         Yeah.

Andrew:         What this is showing is that there’s numerous ways to get hearsay in, but what are the best arguments?  That left B, your gut instinct, it’s a statement against interest.

Thomas:         Ooh, I don’t know if I’m right now!  Shoot!

Andrew:         Or C, statement by a party-opponent’s agent.  You went with your gut, and I’m sorry to tell you-

Thomas:         My gut was wrong!

Andrew:         Your gut was wrong.

Thomas:         Oh wow!

Andrew:         Statement against interest is only admissible if the declarant is unavailable. 

Thomas:         Right.

Andrew:         Otherwise stick the person on the stand and then-

Thomas:         Yeah.

Andrew:         You can say prior inconsistent statement.

Thomas:         [Groans] Ack!

Andrew:         There are all sorts of ways to get it in.

Thomas:         Okay.

Andrew:         Here he’s already testifying so it’s not that it’s a statement against interest, it is whenever you are suing a corporation you can – whenever you sue anybody you can introduce hearsay by the opposing party.  When that party is, as here, a corporation, its employees are its agents and therefore the stuff they say is, even if its hearsay, is admissible under Rule 801(d)(2)(D) of the Federal Rules of Evidence

Thomas:         D2, Mighty Ducks 2.  Oh no, sorry.

Andrew:         [Laughs]

Thomas:         Different law.

Andrew:         So sorry Thomas.

Thomas:         Wow.  That was a hard one!

Andrew:         You did a good job working through it.

Thomas:         That was a hard one.

Andrew:         It’s a very hard one.

Thomas:         I feel mixed about it.  On one hand I definitely lucked into a few of my reasoning because I didn’t think about the “prove negligence.”  I should have, I’ve gotta focus in on that, but on the other hand I do feel like I almost was there.  I was kinda between B and C and I – augh, part of me did wanna go C but I thought it was a little too broad and would allow too many things in, you know?  But yeah, it was that last couple of words, “to prove negligence” was what I needed to pay attention to.  But also, just for learning for next time, a statement against interest is only an exception when the person is unavailable to testify?

Andrew:         Yup. 

Thomas:         For some reason I was thinking well if the person is testifying that they never said that, you have no option then?  You can’t say-

Andrew:         Yeah, no, but then it’s a prior inconsistent statement.

Thomas:         Oh.

Andrew:         Then you can just impeach.  “Oh, you never said that?  Oh really?”

Thomas:         Got that.  So then you’re allowed to put up someone as hearsay under prior inconsistent statement?

Andrew:         Right, yup.

Thomas:         Okay.

Andrew:         Think about that-

Thomas:         Gotcha.

Andrew:         Think about that, a classic example was the O.J. trial and Mark Fuhrman saying, was asked in cross exam, “you’ve never used the N-word?”

Thomas:         Right.

Andrew:         I’ve never used the N-word, and then an awful lot of testimony of yeah, this guy used the N-word all the damn time.

Thomas:         Yeah.  Kinda stupid statement by him, it was the 90s and you’re a police officer?  It’d be like yeah, maybe I’ve used it.  [Laughs] That would’ve been a smarter answer, just saying.

Andrew:         Yeah, there was – again, early season Law & Order that was inspired by this in which McCoy on cross examination is like “have you ever- I forget exactly how they worded it but it was like “have you ever used the N-word,” and the witness was like “Well…” and McCoy, in really, really good like classic lawyer cross examination fashion is like “Sir, do I have to put on a witness who has testified to hearing you say this multiple times?”

Thomas:         [Laughs] Yeah.

Andrew:         It’s a really good – I’ve used that technique a couple of times myself.

Thomas:         Okay, well I’ve learned something.  I got it wrong, gotta play the shame music.

[T3BE Defeat]

Thomas:         I am properly shamed; I’ll have to do better next time.  Let’s find out, hop in your time machine, and let’s find out who is our big winner, getting what I think is a very difficult question.

Andrew:         Well Thomas, we have an interesting week.  I don’t think anyone got this question right on public social media, anywhere on Facebook, anywhere on Twitter.  But we have the best patrons in the universe, so the following patrons all got the correct answer, C, that’s Thomas Colins, Katie H., and Ana Ceclilia Cano.  Congratulations to the three of you, you are the only three people in the universe to get this very difficult question correct!

Thomas:         I got a little too prideful, the test is still hard and I’ve learned my lesson, I’ll have to do better next time.  That’s our show, thanks so much for listening everybody, we will see you for Rapid Response Friday!

Andrew:         Can’t wait!

[Show Outro]

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