First Amendment Bonanza

It’s a First Amendment-themed pod today. First, David and Sarah discuss the city of Anaheim’s ...

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It’s a First Amendment-themed pod today. First, David and Sarah discuss the city of Anaheim’s decision to cancel an America First rally with Matt Gaetz and Marjorie Taylor Greene, and how it’s a textbook example of a free speech violation. They then dive into a ruling from a very divided 9th Circuit about a high school coach who was fired for praying publicly with students after football games. Next, they chat about an 8th Circuit case involving University of Iowa and its selective enforcement of free association policies for Christian groups. Finally, David and Sarah talk about the recent Texas district court ruling striking down DACA.

Show Notes:

–Anaheim cancels America First rally

–9th Circuit prayer case

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  1. Avatar photo
    Dave T

    Laughed out loud at the recusal stuff. That is great.

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  2. Mathew A

    Good episode as always. Though I'm surprised there was no comment about the fact that the current interpretation of the establishment clause is complete BS.

    The establishment clause was to prevent the creation of a Church of the United States. It wasn't to remove religion or religious practice from public life.

    Current Supreme Court jurisprudence on the subject needs a major rethink

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    Bryant Lash

    While Im sure I have more substantive comments I could put in this space, I just want to say on behalf of all software developers and computer programmers: extremely offensive win when Sarah said that chevron's 3-step counting starting at 0 was "extremely annoying for everyone involved". This is our lives - zero-based counting is the way!

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  4. Zack Frank

    Just here to rant that the thing enabling our government's DACA dysfunction is the de facto 60 vote threshold in the Senate. It didn't exist until recently, and gives the majority an easy way out for not getting anything done -- blame the minority! -- even though your own party isn't on board. It directly discourages standing up to your party's fanatics and allows them to drive the narrative, because what's the point of fighting them when you can hide your real vote, not get primaried by rabid activists, and still get the outcome you want?

    Obama + blue congress should have been able to pass the DREAM act. Trump + red congress should have been able to pass their own law to change it and fund the wall. This back and forth is healthy for democracy and good for long term policy, even if the current version is bad. Instead, we politicized the supreme court and expanded the powers of the executive, just to fill the void of a legislative branch that intentionally neutered itself for easier reelections. It's destroying us, but we've somehow convinced ourselves that it's necessary.

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    1. Mathew A

      Disagree. Big changes should require bi-partisan compromise. We don't need drastic changes to laws every 4 years.

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      1. Zack Frank

        Counterpoint: Democrats passed the Assault Weapons Ban in 1994 on a 52-48 vote in the Senate. That's right, we used to pass highly controversial laws, on a partisan basis and without a 60 vote requirement, only a few decades ago! It worked for America for 200 years.

        What happened next? Democrats got crushed in the next election over it, the law expired, and "gun control" became a bad word for an entire generation of politicians. Assault Weapons Bans _still_ don't have support among purple district Democrats. Society was allowed to learn from its mistakes and move on, instead of being caught in an endless quagmire of the same talking points and no action.

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  5. Jake

    The term you all are looking for is "gas"

    "that opinion is gas"

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  6. Joe O

    May we call this "The Angry Football Coach" case?

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  7. CRS

    Now reset the game with the coach wanting to roll out a prayer rug and pray toward Mecca, and play again.

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  8. Anonymous

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    1. Mathew A

      No the purpose of the establishment clause was to prevent the creation of a Church of America. Not to remove religion from public life.

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    2. Susan Huckaby

      I always substitute another religious prayer other than Christian and if it wouldn't fly, then neither should the Christian prayer -- and I'm a fairly conservative Christian. But if we allow that coach to pray and I know those students felt compelled to stand there (I was a high school teacher, so I know the power a coach wields) then it's wrong and crosses the line at any public school. If it was Muslim to Allah, or Wiccan, or Hindu, or Jewish, there is no way the community is on board. It's a good 'mental test' I think.

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  9. mws

    David - I am sorry to disagree based on the facts presented in the pod. If the coach prayed immediately after the game in a public manner - he was on the clock independent of if he is being paid. His responsibility does not end until every player is on there way “home.” So if a parent is late picking up their sophomore and he needs to wait around for the parent - his responsibility has not ended therefore he is on the clock.

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    1. Avatar photo
      Dave T

      But as Sarah pointed out, his activities did not prevent the discharge of his duties as a coach; this is part of the reason why the Supreme Court originally sent the case back down. The fact that he is still on the clock and still a state employee is not *necessarily* in conflict with his religious activities if
      > your actions do not prevent the discharge of your duties and
      > your speech cannot reasonably be understood as state-sponsored speech

      While the first point was not a problem, it is the second element that the case ultimately turns on, as I understand Sarah and David to be saying.

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    2. Avatar photo
      Bryant Lash

      So one of the distinctions they made is that just because you are on the clock does not mean that all of your speech is representative of the state. They they communicate that he was certainly on the clock-that was not the issue at hand. That's why they made the analogue to praying before meal, even if you can be reasonably considered on the clock during the school day lunch.
      Does that help clarify?

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      1. mws

        No and yes I heard the part about praying before a meal as well. From my understanding of the facts reiterated above by EKB this was a public prayer at the 50 yard line on a football field immediately following the game. Not a silent prayer over a meal.

        My point is I think he has no standing as he is still the Coach therefore working for the state until well after the game is over.

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  10. Jackson

    Yay, Sarah was an orchestra nerd in high school like me! Everyone's favorite group of high-strung overachievers at school :)

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