Transcripts For CSPAN2 Discussion On First Amendment Recent Supreme Court Cases 20220923

Thomas well start right back at 1 00. Thomas im a Research Fellow here at the cato Institutes Center for constitutional studies and managing editor of the cato review. I know how insanely cooperative and timely and patient for them to make it happen. Thanks everyone that trevor named and thanked in the First Amendment. We have a First Amendment panel at constitutional day. Its smack dab at the wheelhouse here at the levy center. This year was unusually light in one respect in i believe there was one on First Amendment speech and youll hear professor armijo speak about that. We have one case on First Amendment speech. One case on First Amendment religion clawses. And two cases on clauses. And two cases on the states doctrine which arguably touches on many of the same values as the freedom of speech and the press. Namely, the values of transparency and the open marketplace of ideas. On First Amendment speech, youll hear about a case that might have first seemed to concern municipal fine codes but as you hear the case confirmed weighty questions with implications extending far beyond just science. Questions concerning when the government can discriminate against the speaker based on what the speaker says. Next, youll hear about two cases under which the government claimed the right to withhold evidence and sometimes even dismiss lawsuits entirely based on claims that releasing the evidence could Harm National Security interests. How differential should courts be to such claims . And when should courts themselves insist on reviewing the secrets in private to evaluate the governments claims . And finally, youll hear about a case concerning either one or both of the religion clauses of the First Amendment, depending on which side of the case is on. If the state offers a voucher type program to go to school, can states exclude religious schools on the theory public funding raises establishment of religion concern or does it raise no establishment concerns meaning the denial of funds constitutes a burden on the free exercise of religion. And does it make any difference whether the funds go to religious education as opposed to merely religious affiliation . Here to discuss these cases we have three distinguished scholars. As always we abbreviate the int rows here intros here. You have more time to hear from the panelists themselves and you can read their full bios in the back of the review which you all have. I would like to remind our audience online, you can submit questions on our event page at catos website or on the comments section on zoom, facebook, or youtube or on twitter using the catoscotus. So first up, we have enrique armijo, hes a professor at Elon University school of law and affiliated fellow at Yale Law School information faculty. And part of chapel hill in public life. He will be speaking on the city of austin science case. Enrique thank you, all, for coming. Thanks to cato, tommy, and trevor. As tommy said, ill be talking about sign ordinances. It is really the perfect right after lunch topic. But as tommy also said, part of my goal in this talk is to kind of persuade you these cases are a lot more important than their narrow application that ill be talking about. Also, in the interest of keeping the blood flowing, have some visual aids. Once i kind of get into the talk, were all going to get to play sign ordinance enforcer so youll have that to look forward to. I really have i got it on the monitor but not on the screen. Ive got while theyre working on the powerpoint, i really have four goals for the talk. The first is to talk about the changing role that government purpose has played in content discrimination doctrine. How a 2015 case called reed vs. Town of gilbert kind of resolved that and rejected analysis of government purpose for a facial test. What the court decided this past term in the case that tommy said ill be talking about, austin vs. Reagan national advertising. Whys that was a departure from the reed. And why reed was the better First Amendment rule, at least in my view. So when i talk about content discrimination doctrine, more commonly referred to as content doctrine, what it stands for is government cannot treat speech differently based on the content of that speech. I think those that went to law school remember that doctrine. If a court finds that is what happened, so if the speech has been treated differently because of its content, then the court, in reviewing that under the First Amendment, has to apply strict scrutiny. If that is not what has happened, the treatment gets utmost intermediate scrutiny. This rule goes back 50 years to a case called Police Department vs. Mosley. Justice marshall said theres a picketing ordinance that a protester is arrested under and Justice Marshall says that ordinance discriminated on the basis of content because it made labor picketing in front of a school illegal but it created an exception for labor picketing sorry picketing that was part of the labor dispute. So generally, picketing bad, labor picketing ok. Justice marshall in 1972 says that does not survive First Amendment review. So in theory, as mosley sets out, this is a facial inquiry. It looks to in deciding whether or not content is being treated differently, it looks to the text of the statute. So a facial test. But as time goes on, in these content discrimination doctrine cases, these case these court postmosley are using reviews of the governments underlying purpose or motivation to answer the content discrimination question. So what this kind of how this shakes out in the lower court is that lower courts are saying that governments can refer to content in their statutes so long as that reference is not to express disagreement or disapproval of the content that the government is referring to in the statute. And this leads to a lot of speech adverse results, right . You have cases upholding statutes that refer explicitly to sexually explicit speech in the form of the much maligned secondary effects doctrine. You have panhandling bans being upheld under the First Amendment because you have courts saying, well, this is a panhandling ban but not being passed because the government disagrees with pan handling and thats not content discrimination. So what this version of the content discrimination doctrine really boiled down to is a search for evidence of discriminatory government purpose. Or evidence of discriminatory government motive. But what that actually means in application is confirmation of the absence of government motive to discriminate on the basis of content. Because youre almost never going to find a discriminatory motive on the part of the government and this is for several reasons. The legislator is the they not an it. Justice black in 1971 says the legislature can always change its motivation, right . It can always say in order to avoid judicial review it can actually give a benign purpose to justify a reference to content. So if theres no evidence of discriminatory motive, then the governments going to win at least on the First Amendment or avoid strict scrutiny. And this is why i say and i talk a lot about this in the paper. The original sin here was probably in calling the doctrine content neutrality, right . Because when you make the doctrine about neutrality, then judicial review looks for motivation. And as i just said, theres never discriminatory motivation. So unless you have something that rises to the level of animus, if the neutrality balance is met by no references or no discussion about negative motivation with respect to content, of course, give the government the benefit of the doubt. So that brings us to i see him there. Oh, sorry. I guess you can look over there. That is pastor clyde reed. So pastor clyde reed is from the Good News Community church. He has a church but no building. And the book of matthew teaches us, right, as you see there the quote, you dont need to have a building to have a church. But its a lot harder to have church if you dont have a building. So what pastor clyde reed does is puts up signs and all of us have seen these signs, right . Signs that tell people who are driving around the streets of gilbert, arizona, where his church is going to meet. Under the relevant sign ordinance, in gilbert, arizona, where the Good News Community church is located, that is a sign for a, quote, temporary event. And what that means is that pastor reed can have his sign up 12 hours before church, one hour after church. Then, he has to take it down. Other signs under this ordinance are not restricted in the same way. Pastor clyde reed says this discriminates on the basis of content. The ninth circuit says this is totally fine. Why does the ninth circuit say this is totally fine . Because as i said under the purposebased test that the lower courts were applying, the ninth circuit says theres no evidence that the town of gilbert, arizona, did this because they didnt like the content of temporary purpose signs. Theres no evidence of negative purpose with respect to a particular kind of content. No First Amendment problem. So you can treat these signs less favorably as long as you dont have a purpose in doing so that expresses disapproval or dislike of the content of the sign. Clyde reed goes to the Supreme Court in 2015 and the Supreme Court reverses the ninth circuit. So this is what the court said and this an opinion by Justice Thomas. Justice thomas says it is a facial inquiry. You look at the text of the statute. If the text of the statute refers to content, then the statute is contentbased and strict scrutiny applies. If it doesnt refer to content, if the text of the statute does not refer to content, then you ask the question, does the statute have a contentbased purpose . And the answer to that question is yes, then strict scrutiny can still apply. So whats happening here is that the content a contentbased purpose can doom the law, right, under the First Amendment, but it cant save the law under the First Amendment as was happening in the lower courts. So Justice Thomas cleans this up in reed v. Town of gilbert in 2015. Theres a lot of consternation about this decision. If you want to hear about it you can read an article i wrote called reed v. Town of gilbert, relax, everybody. By the name of the title i thought there was too much consternation about it. The court is clarifying and cabining the role of government purpose in content discrimination doctrine. Fast forward seven years later so im not going to be able to show you the signs but i think i can explain them to you. The city of austin has an ordinance that says, a sign distinguishes between on premises and off premises signs. And on premises signs can be built or modified. And off premises sign cannot. So this is challenged in the Supreme Court as contentbased, right, so thats the text of the statute. The austin ordinance says, as i just said, if it refers to if the sign refers to something that takes place on the premises, it can be built or modified. If it does not refer to something thats on the premises, it cannot be modified. So based on Justice Thomas hypothetical at oral arguments he says, i think Justice Thomas likes barbecue or at least one time likes barbecue, what about a sign that says eat at franklins . Some of us have been in lines for franklins barbecue and i think all the times i click this sorry about this not being sync up what im saying. So assume that the sign says eat at franklins. Thats an on premises sign. No First Amendment problem. That sign can be changed or modified. Eat at franklins, that sounds perfectly ok. Assume, as you see on the slide now, the owner of franklins says, texas, keep your laws off my body. That is not an on premises sign, right . That sign cant go up or modified because its off premises under the statute. First hypothetical, assume that the owner of franklins barbecue is a strong believer in the community of meat smokers. Franklins barbecue runs out of barbecue really quickly. So he puts up a sign that says sorry, im out of barbecue, go to blacks instead, right . Thats an off premises sign because it does not advertise a service that is at that location. That sign can go up. One more example. Stubbs. Again, if you know anything about texas barbecue, this all sounds familiar to you. Lets say the owner of stubbs puts up a sign in addition to his sign advertising stubbs, it also says, be saved. Well, that seems to be an off premises sign but you might know stubbs has a Gospel Brunch on sundays. So the enforcer of the statute has to say, does that sign advertise something that happens on the premises and the answer is, i dont know, right . Its up to the ordinance enforcer. And i argue in the paper that this is what the content discrimination doctrine is really about. And this is what reed got right. So what the content discrimination doctrine is most worried about is diskrigsary charging by the enforcer. You dont want references to content in statutes that permit the enforcer to then discriminate against speech that the enforcer dislikes. Thats what reed got right. So the city of austin ordinance is challenged in the Supreme Court by a group of people who actually it was a Billboard Company. In the city of austin, the Billboard Company couldnt modify its billboards, couldnt the distinguished gentleman from ties them. They say it violates the First Amendment. And the fifth circuit comes to the obvious conclusion. If you have to read the sign, it violates reed. The old test under reed refers to content. If it gets scrutiny, thats under the First Amendment. The Supreme Court says that the austin ordinance is fine and it upholds reed. So how in the world did this happen . How can you have a content discrimination rule that permits austin to have this ordinance . So here is what they do. They put a gloss on reed that says this is the doctrinal answer and then the real answer. So the doctrinal answer says, what the court says, what we really do in reed is ask whether or not the law refers to substantive categories of content. The town of gilbert sign ordinance said, yes, you had temporary signs, you have political signs. You have commercial signs. If the answer to that question is yes, then we apply the rule in reed, right . Contentbased. Applies to scrutiny. But the court says under the austin case, there also can be references to content in text that do not refer to substantive categories of content, that are just general references to content such as the one in the austin ordinance. Those are now ok, especially if they have a contentbased they have a contentneutral purpose. So i say in the article that what used to be a twostep under reed is now a backwards tango ocho, right . This is incredibly difficult to apply but more importantly, what it does, it increases the ability of the government to interfere with speech. And actually encourages the government to speak generally when its referring to speech to avoid the reed rule but so long as what the court says so long as what the court calls the ordinance has a content agnostic purpose, then the First Amendment is perfectly fine. And what i say in the paper, this is a reintroduction of analysis of government purpose in the content discrimination doctrine and i think its a real problem and i look forward to your questions and comments. Thanks. [applause] thomas all right. Next we have liza who is the senior director of the liberty and National Security program at the Brennan Center of justice at n. Y. U. School of law. She will be speaking on the state secret cases from the previous term. Elizabeth first, thank you. Thomas podium is better for main remarks. Elizabeth i am just going to grab my water, then. Thank you. First of all, i want to thank cato for inviting me to contribute to their Supreme Court review and invite me to speak with all of you. I will be talking about the states secret privileges and two cases the Supreme Court issued in march on the privilege United States vs. Zubida and f. B. I. Vs. The States Secret Service applies when the disclosure of evidence through litigation would Harm National Security and the way it works is that the head of the relevant agencies submits an affidavit to the court explaining why disclosure would Harm National Security and then the Court Determines whether the privilege actually applies. And in doing that, the court may review encamera and ex parte the evidence but often the court just relies on the governments evidence. There are two versions of the privilege. The most common by far is the one established in United States vs. Reynolds which treats the states secrets doctrine as an evidentiary. It drops out of the case and the case without it. I think im going in and out. [no audio] is this still working, the microphone . Ok. Sorry. I cant hear it. But the second version was established in United States vs. Totten sorry to then vs. United states and it has a judicial bar. It is applied almost exclusively in cases involving secret contracts between the government and covert operatives, defense contractors involving classified matters where the contracting parties were on notice that the contract disputes would be nonjudicial. For decades this privilege in both of its forms generated very little controversy. It was invoked quite sparingly. But then after 9 11, assertions of the states secrets privilege became much more frequent. And the government also began to explicitly conflate the reynolds and totten doctrines so that in cases having nothing to do with contracts, the government would argue that the case could not be litigated, that it had to be dismissed at the outset because the very subject of the case was a state secret. Some courts have accepted that totten can apply outside of contracts cases. But even but those that stick to reynolds have dismissed cases at the pleading stage before the relevant evidence has been identified let alone reviewed for privilege. Even when plaintiffs could make out a prima fasha case without using privilege evidence, courts have still dismissed the cases when the government has claimed that it would need privilege evidence in order to mount a defense. To be clear, that is not how evidentiary privileges work in any other context. Normally, as i said, the evidence just drops out of the case and the chips fall where they may. Sometimes the plaintiff is advantaged. Sometimes the defendant is advantaged. But under the state secrets privilege its become a heads we win tails you lose scenario for the government. So if the plaintiff needs privileged evidence, they lose. If the government needs it, the plaintiffs lose. The result of this misapplication of the privilege along with some other problematic doctrines, 20 years after 9 11 there still has been no accountability in the courts for the major Civil Liberties abuses that the government perpetrated in the wake of those attacks including the n. S. A. Wiretapping. The f. B. I. s surveillance of mosques. Or the c. I. A. s programs of torture and extraordinary rendition. So having teed up the main area of controversy in this area of law, i will pull a bait and switch on you because the courts do not address that issue. In fact, i think the most notable aspect of the courts resolution rulings was its failure to shed any light on the major questions that lower courts are wrestling with when it comes to the privilege. So what did the court rule . In zubaydah, it was brought by abu zubaydah which the government believed to be a high level al qaeda operative and tortured, including waterboarding him 83 times in the span of a month. Some of this torture took place at a c. I. A. Black site in poland and polish prosecutors are currently investigating individuals who may have been complicit. They sought to depose james missile sorry James Mitchell and john jessen, the American Contractors who helped the c. I. A. Develop the torture program. To secure the contractors testimony, abu zu abida zubaydah filed a lawsuit under 28 u. S. C. 1782 which allows courts to issue subpoenas requiring people to give testimony in foreign proceedings. The United States intervened and claimed the state secrets privilege seeking to quash the subpoena. Both the District Court and the ninth circuit held that the existence of a c. I. A. Site in poland and abu zubaydah was in the record and the state secrets privilege could not apply to them. The Supreme Court reversed. It held that any testimony mitchell and jessen gave that confirmed the existence of a c. I. A. Site in poland now the court found not by a preponderance of the evidence but beyond a reasonable doubt that the c. I. A. Had a site in poland, the former president of poland acknowledged there was a c. I. A. Black site in poland. Theres no doubt on this question. Nonetheless, the court found that mitchell and jessens testimony would serve as official confirmation of the wellknown fact and that could Harm National Security, according to the court, because Foreign Intelligence Services in the future might be left willing to cooperate with the United States if they thought the u. S. Might not respect the confidentiality of the relationship. This failed on its own terms. There was no confidentiality left to respect. Whatever reputational harm poland might suffer from disclosure has already happened. But even if that werent the case, the question of the court should have asked or didnt ask is, does it truly serve National Security to honor a promise to conceal participation in war crimes . It doesnt serve National Security in a broader sense a little better to adopt a role, sort of the equivalent of the crime fraud exception to the attorneyclient privilege that the protections courts afford to secret agreements between u. S. And Foreign Intelligence Services will not extend to the commission of war crimes and human rights abuses. Professor sinar at stanford has an excellent piece coming out soon in the Harvard Law Forum sorry harvard law review that explores this aspect of the courts ruling more deeply. In any case, it is problematic because it extends the reach of this extremely powerful privilege from the realm of actual state secrets which was actually large enough as it is to the vast world of Public Information that might in some way touch on National Security. Lets move to the courts ruling. It reads the issue of whether the provision of the foreign Intelligence Surveillance act, fisa, would displace procedures that would otherwise apply when the government claims the states secrets privilege. The case was brought by three Muslim Americans who were caught up in a campaign that the f. B. I. Conducted in 2005 and 2006 against Muslim American communities in southern california. It was undisputed that the plaintiffs could make out their case without using privilege evidence. But the f. B. I. Claimed that it would need to privilege evidence in order to mount a defense, at least against the plaintiffs religious freedom claims. The District Court agreed and dismissed the entire case. In the ninth circuit the plaintiffs were foreclosed by circuit precedent from arguing that the state secrets privilege doesnt justify dismissal to protect the defendant. However, the plaintiffs did argue that 1806f of fisa basically prohibited dismissal. Section 1806 asks, establishes procedures that courts must follow in cases involving electronic surveillance when the government asserts that disclosing information through litigation would Harm National Security. Under these procedures, the attorney general first smits an affidavit that asserts the claim. The court must then conduct encamera and ex parte a review of the surveillance materials. That en camera review is not optional and the court has to accept the claim of National Security harm. But the court also has to review the materials and make its own determination as to whether the surveillance was lawful. So the evidence doesnt get removed from the case but it does get removed from the adversarial public proceedings. The government argued this provision of fisa applies only when the government wants to use evidence generally in a criminal proceeding and the nongovernment party wants to suppress it, the plaintiff pointed out nothing in 1806f asks this and the ninth circuit sided with the plaintiffs. This faces two questions. The 1806f question, namely, does that statutory provision apply in this category of cases and if so, does it trump the procedures that would otherwise apply to the state secrets privilege . But second, there was also the question whether the defendant privileged information can justify dismissal of the case under the state secrets privilege . That alternative question was foreclosed at the ninth circuit level but not at the Supreme Court level. The court even if 1806f applies in civil cases it doesnt displace the state secrets privilege because, quote, nothing about the operation of that provision, fisa, is at all incompatible with the state secrets privilege. In other words, neither approach displaces the other. They can simply coexist. Thats because in the courts words, quote, the statute and privilege requires courts to conduct different inquiries, authorize courts to offer different forms of relief and the direct the parties and the courts to follow different procedures. I find this analysis to be borderline nonsensical. The clash between 1806f and the state secrets privilege exist potentially because they require the courts to do Different Things when faced with exactly the same threshold circumstance, namely, information that would could Harm National Security if disclosed through litigation. Those differences are what render 1806f and state secrets fundamentally incompatible or a court cannot both rule on whether disclosure would Harm National Security, state secrets, and not rule on that question, 1806f. It cannot both assess whether the surveillance was unlawful under 1806f and not make that assessment under state secrets. It cannot both grant relief to the nongovernment party as required to do under 1806f if surveillance was unlawful and dismiss the case as it does under states secrets. The court just wished away this obvious conflict. But the conflict is there and so the effect of the ruling is to allow a common law privilege to prevail over a clearly incompatible statutory provision, something that goes against the courts own case law. More broadly, i think this decision probably puts a nail in the coffin when it comes to civil litigation challenging unlawful surveillance, fisa surveillance materials are always classified. The government will always assert the state secrets privilege over them and government will always claim it needs them to mount a defense. My takeaway from both these cases is Congress Needs to step in because the court is dodging key questions and is doing so in a way that is allowing the privilege to metastasize in the lower courts. There are a number of Things Congress can do to ensure that the privilege is in fact treated as an evidentiary privilege and to ensure the privilege doesnt turn National Security policies into an accountabilityfree zone. Id be happy to talk about some of those things during the q a. Thank you. [applause] thomas all right. And finally, next is michael bindas. Hes a senior attorney at the institute for justice. Hell be speaking on carson v. Megan, a case hes uniquely qualified to speak on as he was counsel of record for the winning side. Michael. Michael thank you for allowing me to submit an article in this years review. This is a panel, obviously, about the First Amendment, free speech, free exercise, and certainly carson is a free exercise case and is a tremendous, in my view, victory for religious liberty. But im going to focus a little bit differently on carson as a School Choice case. Im not a religious liberty litigator, per se. I am a School Choice litigator. I defend School Choice programs around the country. So i want to focus on carson from that perspective while its certainly addressing the religion clause issues that came up in the litigation. Since the modern School Choice was in its infancy back the in early 1990s, the big unresolved question whether choice is permissible under the federal establishment clause. Opponents of choice argued because some parents might choose relilgous schools that religious schools that might constitute a state of religion and thankfully the Supreme Court roundly rejected that argument back in 2002 in a case called zellman vs. Simmons harris. If it has religious and nonreligious schools can participate, so long as they operate on the private choice of the paernlts, its parties, its perfectly fine under the establishment clause. Others didnt pack up and go home. They retrained their focus to state institution constitutions. Specifically in provisions that are called Blaine Amendments and found in 37 state sdugss and generally speak constitutions and generally speaking they prohibit religious or the term is Sectarian Schools. And opponents of School Choice ever since zellman have seized on these to attack School Choice programs in court arguing they violate these blaine provisions. Now, you might think that theres a problem if a state constitutional provision singles out and targets religion for disfavor, that could create some problems under the federal free exercise law, and we certainly think it does. But over the last five years or so, the opponents of educational choice have had a theory as to why thats not the case. That theory is something called the status use distinction. Basically, what it says is that while it might be unconstitutional to withhold a Public Benefit from someone because they have a religious status or religious affiliation, its perfectly permissible to withhold a Public Benefit from someone because they might put it to a religious use such as procuring a religious education. In other words, these folks recognized that its not constitutional to discriminate because someone is religious but its perfectly permissible to discriminate because they might do religious stuff. And that in my view is absurd and thankfully in carson v. Makin, the case im here to talk about, the Supreme Court seemed to agree and kill the status use distinction. Now, before we get to the happy death of the status use distinction, its important to look at the origin story of the distinction. The status use distinction was born on june 26, 2017, at 10 09 a. M. Its at that time on that date that the Supreme Court handed down another decision, Trinity Lutheran church of columbia v. Comer. It involved a resurfacing program that the state of missouri had. The state provided monetary grants to nonprofits so they can resurface their playgrounds with the scrap tire material in order to protect the knees of the kids playing on the playground. Trinity Lutheran Church which operates a preschool applies for one of these grants. Its denied. And states justification for denying it is the state Blaine Amendment. It prohibits aid to sectarian institutions. And so the state says, sorry, Trinity Lutheran, you cant get it. Trinity lutheran challenges the exclusion. The case goes up to the u. S. Supreme court. And thankfully, the Supreme Court concludes that violates the free exercise clause of the United States of the constitution because it singlings out singles out and excludes an entity for from this Public Benefit program simply because of its religious status, simply because of its identity as a church. But then the court or more accurately four justices in the majority drop a footnote in the opinion. Its a 27word footnote and it says this. This case involves expressed discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination. Now, again, this was four justices signing onto this footnote. Not a majority of the court. And the footnote doesnt say there is a status use distinction. It just says were not addressing whether a usebased exclusion. Were simply addressing an exclusion of terms on religious status. But never the choice, School Choice opponents seized on that footnote, on those 27 words to argue that state law could bar, that Blaine Amendments could be used to attack School Choice programs on the theory that they allow parents to put their benefit to the use of procuring a religious education. Now, like other members of the 27 club, this 27word footnote was not long for the world. As you see it went away of jimi hendrix, amy winehouse, Janice Joplin and other members of that club. Now we thought we would get another inness pin osa. It involved a choice in the state of montana. Allowed religious schools to participate. Then the state Agency Charged with implementing it promle gates prom no religious schools. So we challenged that on behalf of the am practice and the case goes up to the Supreme Court. The Supreme Court holds correctly that exclusion violates the free exercise clause. Missouri montana, like missouri before it had said we have a Blaine Amendment. It prohibits state funding to religious constitutions and the court said, look, this is basically a straightforward application of Trinity Lutheran. We said you cant exclude an institution simply because of its religious status in Trinity Lutheran and thats precisely how your Blaine Amendment is being applied in this situation. So a great win. But the court dodges the question of usebased discrimination in its constitutionality. But the status use distinction thankfully dies in carson in this term. Now, carson involves another School Choice program in maine. Maine is a rural state. There are not many Public Schools. And if a town doesnt operate a Public School or doesnt contract if a town doesnt operate a Public School or interact with another school to educate its resident students it has to pay tuition to the school of the parents choice. It could be a Public School, it could be a private school, could be in the state come out of state come out of country. One thing it cannot be was religious. Maine since 1981 had a statute to prohibit Sectarian Schools from participating in the program. We challenged this exclusion in the wake of Trinity Lutheran and thought it should be an easy win but maine wised up. After Trinity Lutheran and after espinoza the state adjusted his justification for the exclusion saying we are not excluding the schools because they are religiously affiliated but because they do religious stuff, they teach religion and that is different than the Supreme Court didnt address that. It addressed that in espinoza and the main point of footnote 3, that 27 word footnote said this is perfectly fine. The First Circuit bought that reasoning and upheld the exclusion again pointing to footnote 3 in Trinity Lutheran and also by redefining the benefit. The benefit is tuition to attend a public or private school, the First Circuit said the benefit is a substitute for a Public School and of course a Public School has to be secular, therefore require that the schools, the children attend under this program. We appeal that decision to the Supreme Court and the Supreme Court agreed with us that that is just as unconstitutional as the discrimination going on in Trinity Lutheran. The court starts out in the first half by saying this is a straightforward application of the case. Chief Justice Roberts in the majority said this is an application of unremarkable principles and when i got to that point in the opinion, the court dodgers the status use distinction but chief Justice Roberts went on and took issue with what he called recharacterizations of the First Quarter First Circuit, our recharacterization of the benefit and the exclusion. Member the First Circuit said the benefit is a substitute for Public Education. Chief Justice Roberts says there is no such thing. Statute finds the benefit is tuition of public or approved private school of students choice, nothing about a substitute for Public Education and if you look at how the Tuition Program operates it doesnt do anything to ensure the schools are like Public Schools, the participating schools in the Tuition Program had to be nonreligious, unlike Public Schools and a host of respects, they can charge tuition number one, didnt have to accept all comers, didnt have to follow state curriculum, didnt have to fight higher state certified teachers, could discriminate on grounds Public Schools could not, so chief Justice Roberts is this is not a substitute for Public Education, the First Circuit was simply were characterizing the benefit in order to justify the very discrimination maine was engaged in. And chief Justice Roberts turns to the status use distinction, and as he accurately sows the First Circuits opinion is recharacterizing the exclusion in this case. He begins by saying there was this footnote but we never suggested youth based just, nation is less offensive to the free exercise clause that explains why and correctly points out the very purpose of a religious school, that is a school with a religious status is to engage in the conduct of providing a religious education and sites the courts earlier decision in our lady of guadalupe where educating young people in their faith, training them to live their faith our responsibility is that lie at the core of the mission for private religious schools, so again, pointing out the it is the very religious status of schools that impels them to engage in the use or conduct of providing religious education so those near meaningful distinction between status and use and also points out mains exclusion, to allow them to parse out religious uses then we are inviting the state to engage in scrutiny of religious schools curriculum to determine what is sufficiently irreligious, what is too religious and that invites government entanglement with religion and denominational preferences, allows the government to pick winners and losers in terms of which schools choose to participate and which are irreligious and the establishment clause prohibits both. So the port holds regardless of how the benefit and restriction is described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise. So real quickly, what does carson do for the School Choice movement and what does it not do . Number one, put to bed the status use distinction. It also put to bed you will notice when i talked about Trinity Lutheran and espinoza i talked about maine doesnt have a plain amendment even though it was the home of their namesake james g blaine. It excludes schools based on state statute, not state constitutional provision so you might think carson has little to say about that is not the case. It this equates mains statute with a bland amendment, specifically the plane amendment issued in espinoza. The court says while the wording of the montana and main provisions is different the state is saying it doesnt matter if it is state statute or state exclusion or constitutional based exclusion, you cant single out and exclude religious options this way. That is important because many states have Blaine Amendments the have you spaced language, many of them target rules and institutions with religious affiliation of status but many target particular religious conduct, arizona, utah, washington, there Blaine Amendments all speak to religious worship exercise or instruction with government funding of those things so it is clear that even when Blaine Amendments speaks in the you spaced language it cannot be applied to single out and exclude School Choice programs. What doesnt carson resolve . Three big issues in the educational choice sphere, the first is whether or not states can condition participation in School Choice programs on certain admission or Employment Policy specifically can a state say you cant participate if you consider Sexual Orientation or gender identity and employment or admissions. The reason the court didnt speak to that in carson was because maine didnt concern itself with it. It excluded all religious schools and they found that out the hard way when it applied to participate in the program and it does not consider Sexual Orientation or gender identity in hiring or admissions yet it was nevertheless excluded because the state deemed a Sectarian School so that question the extent to which participation be conditioned on employment and admissions policies, resolved at some point in the future. Theres a case, making its way through the courts now that may speak on many of those issues and two other things carson does not resolve, the School Choice amendment, permissibility of applying Public Private blame to bar School Choice programs, these are plan amendments that existed in a handful of states that dont exclude religious schools specifically but are all private schools so at least on their face they dont just come in it against religious schools and carson doesnt speak directly to them but as i point out in the article, there are a number of constitutional problems even with those neutral Blaine Amendments that rental is on as problematic as the more traditional Blaine Amendment and finally the Charter School question. A lot of media in the runup to the decision in the wake of the decision suggested it was opening the door to religious Charter Schools, it doesnt, it doesnt speak to that issue. Charter schools while often privately operated are nevertheless Public Schools and you have completely different establishment clause concerns when dealing with whether or not a Charter School may be religious or engage in religious instruction but carson, the last remaining constitutional issue concerning choice, selin held its permissible to include religious options, carson makes clear state law may not be applied. Thank you. [applause] thanks to all three of our panelists for those great remarks, weve now got 23 minutes for questions and answers. I would like to remind the audience online they consume and questions on catos website or in the comments watching on zoom, facebook or youtube or on twitter using hashtag cato scotus and i will see them pop up on my myriad devices here but first do we have questions . I have some questions and reserve but only if we dont have a hot binge here, any questions in the offing . Got a shy audience to start. I will start with one for henrique. Several, maybe all of them in this case own billboards and Justice Alito wrote a partial defense where he distinguished between billboards which are not attached to any building at all versus the sign attached to the restaurant, i thought that was pretty convincing and there is a strong case that the problem is attached to buildings, not billboards. I wonder if you agree the court should have distant was those two and do you think it hurt the case or this wasnt the ideal posture, the fact that the main point seem to be billboard owners rather than restaurant owner. I think Justice Alito is right. The city of austin is more than welcome to say no more billboards in the city of boston. It is more than welcome to say no one in austin is allowed to ditch their sign. Those organizations, the First Amendment concerns at all but the city of austin is trying to distinguish based on the connection between the sign and the place to favor this. I talked about this in the paper to favor property owners. If your sinus on your property you can do anything you want with it. If your sign is not on your property they cant do anything to it. What Justice Alito is getting at and a circuit recognized to a better degree than the Supreme Court did was there are lots of other ways. One more thing. I forgot to say the actual reason of what was actually going on in the case putting aside the convoluted trial, this is the first line of the opinion, this is an opinion written by justice sotomayor, the first line of the opinion this is there are thousands of jurisdictions across the country that have ordinances like this and as soon as you are worried about that youre going to uphold the ordinance and Justice Roberts in the majority of read and the city of boston, if theres anything john roberts hates it is a bureaucrat. So when they see this challenge brought by this billboard operator, what they see are thousands of lawyer hours paid by taxpayers to try to figure out what all of you state and local sign laws say as a result of incentives in the juniper beautification act. All of this work is going to have to go into figuring out which of these can survive read and which ones wont but instead of doing that, they create exceptions and say the city of austin isnt worried about content, they are only worried about content if theres a connection between what the sign says and where it is, we will carve out an exception to this rule from 2015 to try to prevent all this work. Thank you. Liza. I want to accept your invitation for talking about Congressional Solutions a bit during the q and a. I wonder if you could expand on those a bit and specifically speak to the extent you can how do you convince people with political concerns, the risk averse and as you might expect, to run any risk of National Security concerns and the elevator pitch to the congressperson who thinks the last thing i want to do is test any law that has any chance of letting terrorists get away with something . I will check out first bottle vacation we are talking about is litigation that has been following up for 20 years and has to do with Government Programs that are no longer in place and with terrorists who are no longer in place so the notion that hearing these cases through and having some kind of accountability for abuses that happen 20 years goes going to harm our National Security today, i would reassure congress thats not an issue. They would also have concerns looking forward to the future. Let me just say what Congress Needs to do in the first thing they need to do is make sure courts are not making, are not ruling on whether the privilege based on government predictions about what the evidence indicates will be. There is no other evidentiary area privilege where a court will dismiss a case based on one partys predictions how evidentiary disputes will be resolved once they know what the evidence is so what that means to me is congress should require, essentially prohibit proceedings for that reason. There may be other reasons with that. But the party should go through discovery, and identifying what the evidence in the case will be, to be sure, if responding to a discovery claim or discovery question would require the government to disclose privileged evidence, at that point, the court should review the evidence and make a determination but this should not be a blanket determination about evidence indicated, according to what that evidence is. The second thing congress should do is to make sure courts are scrutinizing the governments claims a little more carefully. In this regard i want to check out the original case that established evidentiary area versus privilege, the government claimed in that case that it could not disclose an accident report about an air force plane crash, a lawsuit brought by People Killed in the crash and the government said there will be all kinds of information about secret equipment in the report, cant disclose it. The Supreme Court did not look at the evidence and the lower court should not look at the evidence, they should accept the governments data, the case was not dismissed, the evidence was excluded. Years later, decades later the accident report was released, there was no information in the report about secret equivalent, there was proof of negligence on the air forces part so there are many reasons, reynolds being one of them, for the court to scrutinize these claims more carefully and congress should require the courts to review the evidence to make sure government discretion of the evidence is accurate, not to secondguess National Security judgments but to see what the evidence actually is. The third thing congress should do is to think of some creative solution for situations where evidence like privilege to allow the case to go forward. Theres another law that applies when classified information is at issue in criminal proceedings called the classified information procedures act that provides a good model for this. It provides rejected versions of evidence, summaries of evidence, admissions of fact in lieu of introducing the evidence, various creative ways that will help plaintiffs and defendants to go forward with litigation. Those are the main features i would propose in legislation and what i would Tell Congress is this is your responsibility. Congress authorized these lawsuits that are being shut down. Its not the issue of the executive branch, article 2 authority to protect National Security information. This is intruding on congresss article 1 authority to authorize legislation in these cases, intruding on the courts article 3 responsibility to adjudicate cases and controversies so this is really necessary to uphold the constitutional balance of power to make sure there is accountability for abuses in National Security policy and not create this accountability free zone and to restore the privilege back to the way the Reynolds Court conceived of it, not reviewing the evidence in camera but the Reynolds Court says evidentiary privilege, let the chips fall where they may and the lower courts have gone too far for that. Long answer. Great answer. Michael, i will have one for you and then see if we have any in reserve in the audience. One of the cases the Opposing Side relied on heavily was lock versus davey, about public funding. Correct me if im making a too simplistic but a case where funding went to someone in the ministry specifically to be a minister and the Supreme Court said you dont have to fund that. Im wondering at this point what do you think is the status of that case, where the current doctrine lines, cant coexist with it and if it is this is it limited to the ministry or will there be any difficult line drawings Going Forward between that and general religious education . Great question. The fact that locke has cause mischief for so long has always been interesting to me because the case involved a Scholarship Program in washington state. And need and achievement based scholarship where kids could attend religious schools, take religious courses, take compulsory religious courses. The only thing they couldnt do was use the program if they were majoring in what the state called devotional theology, which was specifically Theology Program designed to train future ministers and the Supreme Court upheld that exclusion in a 7numtwo opinion but in doing so did a couple things that in my mind should have been just that situation, number one, it said the only state interest we are addressing in this case is the state interest in not funding clergy. That should have been enough right there to say that is all this case is about. Moreover the court said the case turned on the unique historical state interest in not funding clergy which was commonplace. There were commonly in the early state constitutions prohibitions on statefunded clergy, the court said historically this exclusion is wellfounded. That also should have and the decision but opponents of School Choice read lock far more broadly is allowing any kind of religious exclusion in a scholarship or Financial Aid program and many lower courts bought that argument and including the First Circuit, which in a previous case striking down the religious exclusion in the main program pointed to locke and said this was justification to exclude religious options from Education Programs more generally. In carson, the Supreme Court finally says no, locke is limited to one thing and one thing only and that is exclusions that again, are for students who are studying for a career in clergy, vocational religious instruction. I dont think theres any more wiggle room. The only things i say in the article, the only other things the court could have done to make any more clear was either overrule locke outright which i wish it had but it didnt or limit it to litigants named gary locke and joshua davey but short of that there was nothing else the court could have done more clearly. There is no more attraction in locke. It dealt with a very unique, specific, historically rooted state interest in not funding clergy. It doesnt speak to religious exclusions any more broadly. Questions . We have one right here. Thank you. I want to pose this, there has been a significant amount of attention given to the effect of both covid and trans and other kind of sexual related or gender related activities causing families to start to leave government schools for private schools and i am wondering, the particular case in which a parent didnt want want trans and gender studies to be part of the school curriculum, with and accosted by the government claiming that they were abusing their child and have a child taken away from them. Im wondering, if you could talk a little bit about what the government interest arguments might be for those who are promoting gender studies and those who are demanding covid protections, particular shots in Public Schools. Those are difficult questions and i am not sure im competent to speak to them. At a School Choice litigator, i would say from my perspective, the more interesting question is not what is the state interest or teaching certain things in state schools, they are after all state schools. And while i guess i would say no one is compelled to attend them, we have compulsory attendant requirements, and opting out of Public School system is not an option financially away assigned kids to schools based on zip code, based on where their house is which is a proxy for wealth. So it is a difficult question because nevertheless after all they are government schools and that is the beauty of School Choice, it provides another option for those families who cant exercise cant opt out of those things by moving to Different School district or paying tuition outofpocket and i think weve seen a proliferation of School Choice programs in the last two years, most of that is attributable to what parents thought during the pandemic, perhaps some of it has to do with other issues you mentioned. Inevitably there are clashes about the extent to which states can condition School Choice participation on schools adopting policies in the School System and again, it is not my area of expertise, institutionally, we dont have a position on some of these issues but i would say carson does address some of that with respect to religious schools indirectly and that is remember that i said, relied a decent amount on our lady of guadalupe, that case was all about religious autonomy, it concerns religious schools ability to avoid employment discrimination claims based on alleged sex discover nation, the court relying on religious autonomy, and they could not be subjected to those lawsuits and so the fact that carson relied heavily on our lady of guadalupe, its principle of religious autonomy perhaps forecast where the court will come out on some of these issues that lie ahead, government participation on admission policies but i wish i could Say Something more beyond that, wish i could answer your question but it is an area that is out of the institutional focus, something that inevitably will be litigated. We will see how those come out but i would keep an eye on the case i mentioned with respect to Sexual Orientation and gender identity. Wait for the mike. You mentioned publicprivate blame amendments, formerly neutral but you have concerns, what are those concerns, specific legislative history and it would require vouchers everywhere. And the Public School monopoly itself. I dont think my theories would go that far in carson at espinoza before it, the court it is not required to subsidize Public Education. And cannot discredit based on religion. As to my theory as to, theories as to why Public Private blames are just as problematic i would say three things just as are traditional blame, Public Benefits on a parents surrender of her free exercise rights, Public Private conditions, Public Benefit based on a parents surrender of her rights under society of sisters to select a private school for her children. Conditions are right. So long as smith is still good law, even operating within that framework, publicprivate blames burden a hybrid right, hybrid right mentioned in smith, which is free exercise coupled with the right to direct education of your children, theres an argument that even under smith, they are facially neutral and subject to scrutiny because they do burden a hybrid right. It still get strict scrutiny, and theres an equal protection problem and this goes back to robert versus evans, colorado adopted a constitutional amendment that prohibited any aid or preferred status to gay and lesbian citizens, the court invalidated that saying a state constitutional provision that is more difficult for one group of citizens than others, and by definition equal protection problem, and they do the exact same thing, post structural barriers, make it impossible for parents who choose a private school for their children. Question . My question, i know that having in camera view of these cases with the an improvement for the current status quo but in my opinion that doesnt go far enough. We need adversarial briefing in cases like this. What i would like to see is the government say this is a topsecret document, you got to have a topsecret lawyer to represent you. You might not be able to share with the client all the details but you have an adversarial proceeding for people to have appropriate security clearances or it is more restrictive to have the government give a list of 10 lawyers to securely handle this kind of situation. Mi on . I agree and i gave you the Readers Digest version. I would like to see them not make predictions about evidence. The second one, when i said review the evidence more closely i left out for brevitys take another aspect of that which is to increase the adversary reality of that and such mechanisms are in the news, the classified information, we have a model ford and we know it can work. In certain circumstances in some of these cases we have seen courts try to get the government to agree to clear the plaintiffs attorney, the government has dragged its feet, behaved very badly, so the Supreme Court case, the executive branch has complete control over transparency so i am not saying it would go smoothly but it would certainly be another increment. Thank you for that point. It is 2 15 so we have to end their. If you have more burning questions. If you have more burning questions you can find our panel somewhere getting refreshments, we will take a 10 minute break, refreshments are available in the Conference Center foyer where we will convene at 2 25 but lets thank our panelists. 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