Welcome to Discourse where we cut through the noise and make sense of the chaos. I'm your host, Wayne Unger. I'm a law professor and former Silicon Valley nerd, and I've spent years breaking down complex topics into digestible takeaways. And on this podcast, we'll take a deep dive into the pressing issues shaping our world in law.

Politics, technology, business and more. No echo chambers, no corporate influence. Just thoughtful analysis and respectful civic dialogue because understanding different perspectives isn't just important. It's necessary. Let's get started.

All right. Welcome back to Discourse. I'm your host, Wayne Unger, and we are recording today's episode at 2:00 PM on. Tuesday, July 1st, 2025. And as always, things may have changed since. Before we begin, we are going to announce a new format to the show. The new format is based on the feedback that many listeners have actually provided us, so thank you for that feedback.

And that new format will begin [00:01:00] each episode with an unscripted portion where I react to the headlines and the viral social media posts of the day. I'll provide my commentary as an example, and then after this segment we'll turn to the scripted portion of the show for a more in-depth exploration of something that is happening, like a Supreme Court case or the President's latest executive order or.

Perhaps newly debuted tech from Silicon Valley or maybe a major international news story. And if this works, we'll stick with it. If not, let us know. Send us a comment or an email. We always welcome your feedback. But today's episode, well, we'll discuss three major Supreme Court decisions that the court published on Friday, June 27th, the last day of its term, those cases are Mahmud versus Taylor, Trump, v Casa, and Free Speech Coalition v Paxton. Now these cases ruled on legal and constitutional issues ranging from [00:02:00] children's access to pornography, birthright citizenship, universal injunctive relief, and religious opt-outs in public education.

Let's begin with today's headlines and what's going viral on social media breaking. A couple of hours ago, the United States Senate has passed the one big beautiful bill for President Trump, his key piece of legislation for his second term in office, and the vote was split 50 50.

Some Republicans three in fact, jumped ship and joined all of the Democrats to split the vote evenly 50 50 in the United States Senate. So what happens, of course, when the vote is split, is you have the vice president step in and cast the tie breaking vote. Now, of course, vice President JD Vance voted in favor of the bill, and so the final count was 51 to 50, and now it gets sent back to United States House of Representatives for perhaps additional edits, [00:03:00] revisions, amendments, or, and or just straight up approval.

Three Republicans joined the Democrats in voting to kill this bill. They were Susan Collins, Rand Paul, and Tom Tillis. Now, the thing here is Murkowski. Senator Murkowski of Alaska has been publicly saying for several days now that she opposes the bill. Yet when the vote was called today, she voted in favor of the bill.

And so here's my reaction. One, you vote differently than all of the press that you've done saying that you're against the bill. Second, with that is. She now claims that she voted in favor of the bill with the hope that it gets sent back to the house for additional tweaks and additional amendments.

She has said publicly after today's vote that she believes [00:04:00] it's not quite there yet. Lisa Murkowski. Senator Murkowski. Here's the thing. If the house blesses the Senate version and doesn't change anything about it, and they vote to approve it, then it goes to the President's desk, and so by voting for it today, Senator Murkowski, you are essentially creating the opportunity that this bill, which you think is imperfect, which you think isn't there yet, can now make it to the President's desk.

It, it just, it's beyond me that you Murkowski, Senator Murkowski and in fact other Republicans who might have voted for the bill today, but who haven't, you know, publicly come out like Senator Murkowski has said to, to the Republicans who believe that the bill isn't good. That, that it's not ready yet. You vote for it anyways.[00:05:00]

No, you vote for it anyways because you fear the president's backlash. You fear him turning the Republican base against you. That's really why you do it. Where is your backbone? Where is your backbone? That's, that's, that's what I've been wondering for, well, for about 10 years now.

Let's switch gears now and let's look at a new poll that was released today from N-P-R-P-B-S News and Mars. And this poll has to deal with the state of our democracy. It came out earlier today, and it says, according to NPR, that three out of four respondents say that there's a serious threat to the future of democracy overall.

76% of those polled and those polled 1,381 US adults say that there is a threat to American democracy. 75%, 76%, excuse me. 89% of the respondents [00:06:00] who said that there is a threat were Democrats and 57% were Republicans, and then 80% of Independences say that there's a serious threat to the future of democracy.

75% of those who responded to this poll say that there's a serious threat to democracy. Now, of course, if we extrapolate that to the 350 plus million people across the country, I think we would expect some changes because think about it.

When a poll is conducted, how many times, if you're a registered voter, have you received a phone call and ignored it because you know it's a poll. Because you don't wanna respond to a poll. I, for one, don't typically respond to polls. So [00:07:00] that said, we always have to look at polls with a grain of salt, with an eye towards skepticism.

But regardless, we are seeing a growing concern for the state of our democracy, and regardless of whether you're a Democrat or Republican or an independent, regardless of wherever you fall on that political spectrum, you likely have somebody to blame for that threat to democracy, right? Democrats, of course, are going to blame Donald Trump.

I think overwhelmingly the Democrats will blame, blame Donald Trump. And in fact, probably an easy majority of independents will also blame Donald Trump. But the Republicans now, the Republicans control Congress and the White House. They also control the Supreme Court. [00:08:00]They have the power, the majority in all three branches of government.

And yet Republicans still state that there is a serious threat to democracy. So I think, I think if you ask an ordinary conservative, is there a serious threat to democracy? And they say, yes, I think they would say that the Democrats are to blame for it. But here's the thing. The Democrats are not in power in any branch of government in any of the three branches of the federal government.

They're not in the White House, they're not in control of Congress, and it's a six three conservative super majority on the United States Supreme Court. So who's actually running the country? Which political party has the power? Well, it's overwhelmingly the Republicans.

The poll [00:09:00] from NPR also showed general dissatisfaction with political leadership. Now, the poll says about four in 10 respondents approve of President Trump's performance. Moreover, many are actually disappointed with his performance on the economy. So overall, and this includes everyone that was polled overall on the issue of immigration, 52% disapprove or strongly disapprove.

43% approve or strongly approve of Donald Trump's handling of immigration with a 5% buffer in it. On foreign policy, 41 52, 40 1% approve or strongly approve, and 52% disapprove or strongly disapprove with an 8% buffer in the middle. And on the economy, 39% [00:10:00] approve or strongly approve, 53% disapprove or strongly disapprove with an 8% buffer.

So actually the issue that of the big three, right of immigration, foreign policy in the economy, the issue that he's doing the worst on is the economy. And that actually, if I ask some of my own Republican friends, that was the issue they voted for. They prioritized the economy as their number one issue when they voted last November.

And yet there's broad dissatisfaction. The economic performance of this country. Now the poll also found that Republicans largely approve of their own party in Congress while the Democrats are split on theirs. This doesn't surprise me at all.

This doesn't surprise me because, in talking to you all and, and [00:11:00] listeners, and in talking to, my friends around the country and around the world, on the Democratic side, there's broad frustration at the Democratic party and the Democratic leadership in Congress. So that would be Hakeem Jeffries in the house and Chuck Schumer in the Senate.

Where are you? Is the question, where have you been? Where have you, what I. Voters, Democrats are questioning whether you're doing anything. I think the senior leadership of the Democratic Party is in a bit of disarray because there is no single leader of the Democratic Party right now. We know for the last 10 years that Donald Trump has been the leader of the Republican Party, even when he wasn't in office during President Biden's term.

Now, the Democrats of course, relied on Joe Biden when he was president, but now that Joe Biden has taken a step back and [00:12:00] effectively retired, now there is no head of the Democratic Party. And so I think, this is my observation that the Democrats are running around with their heads cut off like chickens or whatever that saying is.

So in my observation, the Democrats aren't doing much. They have no central leader. They have two split leaders. If you think about it, they split the leadership. Right Now,

so many across the country, myself included, are wondering what is up with the Democrats right now? It doesn't make much sense to many voters, democratic voters across the country that in many ways democratic leadership is missing in action. Yes, they tweet every now and then. Yes, Hakeem Jeffries is out there tweeting.

Yes. Hakeem Jeffries as the minority leader in the house is holding press conferences. Same with Chuck Schumer for that matter, but you know, who is really effective at getting their message out [00:13:00] to the majority of voters, really seemingly a OC. And now we have the official Democratic nominee for Mayor of New York City to.

He's also very effective at getting his message out.

So I ask, where are the Democrats, your MIA, what are you doing to assert the interests of your following, of your voters, of your base? I'm not seeing any of it. We have Elizabeth Warren, who's done a lot of public media. We have Bernie Sanders, who of course has done a lot of public media. A OC is out there holding rallies with Bernie Sanders.

They all are getting out there and trying to deliver a message to the American people. But Chuck Schumer and Hakeem Jeffries, where's the central coordination in that message? It's a party in disarray. It's a party [00:14:00] that's MIA as a whole. And perhaps that's because there's no single head of the Democratic Party.

There's no leader, figurative, or symbolic leader or literal leader of the Democratic Party. Whereas the Republicans have benefited from having Donald Trump with all of his pros and cons for that matter. Over the last 10 years, they have benefited from having a single leader of the Republican Party, that even when you have a strong, incredibly present majority leader in the Senate, Mitch McConnell, before he stepped down, even Mitch McConnell bent the knee to the leader of the Republican Party.

Donald Trump. And I'm not saying Democrats should bend the knee to somebody, but perhaps we need to identify who is going to carry the Democratic Party to its next iteration. I think we benefited [00:15:00] from Obama for eight, maybe 9, 10, 11 years. But Barack Obama is no longer the head of the Democratic Party, and the country is vastly different today than it was in 2008 when Barack Obama won his first term, or even 2012 when Barack Obama won his second term.

Hell, it's a different country than it was in 2020 when Joe Biden won. It is time we move the Democratic party forward. It is time for new leadership, for better coordination and for better messaging. The Republicans have been very, very good at this. They've been very good at coordination and messaging for the last 10, 15 years.

The Democrats have failed at it, so I think it's an opportunity. For new leadership to step in and [00:16:00] help organize the Democratic party. But unfortunately, it seems to an outsider that the Democratic Party would rather reject new leadership outright, just reject them, kick 'em out, or turn 'em down in favor of keeping the current leadership in place, which has not been successful.

Yes, you got Joe Biden elected in 2020, but I would say that that was in a way, a totally different election because of the COVID-19 pandemic that was top of mind for every voter who went to the polls. In November of 2020, the pandemic and perhaps America wanted steady, proven, and experienced leadership.

Okay, that's fair. But as we think about moving forward, I. Barack Obama is not the person to carry us forward. Joe Biden is not the person to carry us forward. [00:17:00] It is time we find a new leader or perhaps a group of leaders who can carry the Democratic party forward and get us back into power at the midterms and beyond.

Many Democrats will say that the current Republican leadership in all three branches of government, for that matter, have severely injured America. That they have caused great disruption. And I don't mean that in a good way to America, to the world, to America. Standing to American programs and initiatives around the world.

And I receive this question on occasion. I. Often for my really good friends who are concerned about, well, let's say the Republicans are no longer in power in 20 28, 20 29. [00:18:00] What then, what do we do? Well, I argue that it's easier to destroy than it is to create or rebuild. It is easier to destroy than it is to create or rebuild, and that will be the world in 20 28, 20 29, that we face that it is easier to destroy.

And in the Democrat's eyes, that's what Donald Trump has done in the six months that he's been in office during his second term. You mind? We have three and a half more years to go

and whoever steps into the leadership roles. In each branch of government in the future, we'll have to rectify or remedy the situation, so we'll see.

And with that, we'll be back after this message.

Thank you for listening to Discourse. We are excited and honored to announce [00:19:00] that you all have put us in the top 60 of News Commentary, podcasts in the United States. On Apple Podcasts. So thank you once again. We'd like to continue making this podcast available to you without commercials. To help us continue this work commercial free, please join us as a subscriber and support us with a monthly contribution.

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Alright, as promised, let's look at three recently decided Supreme Court cases, three cases for today. Before I get into it, I just wanna say I. I've already seen the public narratives and characterizations of these cases get a a bit misleading or plainly inaccurate. My hope is today's conversation. My hope with today's conversation is to accurately and fairly represent what the case is actually said, but then of course, adding my commentary, which will present a position or some bias regarding each case.

In so doing, I hope [00:20:00] to draw clear lines between what is kind of an accurate and fair description on what the case actually said, and then of course, my personal and professional opinion on the case. But I'll tell you right now that I tend to agree with the liberal justices on the court if you haven't figured that out through my commentary in past episodes, but not always.

I'll also be the first one to tell you when I disagree with them, and perhaps on occasion when I agree with a conservative majority of the court. Now, with that said, let's begin with the most significant case, the one with the most profound implications. Let's begin with Trump v. Casa. You might recall that early in Trump's second term, so several months ago, president Trump signed an executive order that sought to kill birthright citizenship in some circumstances.

Not every circumstance, to be fair, and we've discussed this executive order on this podcast in the past, so I, I won't spend much time rehashing the particulars about that executive order [00:21:00] or about birthright citizenship in general. But in short, depending on the legal status of the baby's parents,

the baby might not receive American citizenship even if that baby is born on US land. That is the effect of Donald Trump's executive order. And as I've said on past episodes, this executive order is so blatantly unconstitutional. President Trump and his administration essentially sought to amend the Constitution unilaterally.

That's how I characterize it. And at this point, it is clear the Supreme Court has ruled time and time again if you are born on US land and you are an American citizen, period. Full stop. Now, of course, the Supreme Court could always reverse course and say that its previous rulings on this subject were wrong like the court did in Dobbs with respect to Roe v.

Wade. But I suspect even with the conservative majority, the opponents to birthright [00:22:00]citizenship would not have the five votes necessary between all nine of the Supreme Court justices.

Either way. That constitutionality or legality of the executive order itself was not actually before the Supreme Court at this stage. Instead, the Trump administration initially asked the court to determine the legality of universal injunctive relief by the district courts. Okay, so the issue that the court was asked to decide was whether the federal district courts exceeded their legal authority when they issued universal injunctions that blocked Trump's executive order.

And on Friday last week, the court ruled that yes, district courts do not have the legal authority to issue universal injunctions. Thus, with Friday's decision, the Supreme Court effectively invalidated any and [00:23:00] all universal preliminary injunctions issued by district courts. And perhaps, although that's not super clear.

The circuit courts of appeals as well, any of those preliminary injunctions that are currently in effect. But to be clear, this applies to all universal preliminary injunctions, regardless of whether they were first issued against the Biden administration or the Trump administration for that matter.

So to the extent that any universal preliminary injunction is still in effect against the Biden administration and any of their policies or practices or actions, well, those are also invalidated now as well. Now, the concept of universal injunctive relief has been a topic of debate for some time now, both in politics and in fact amongst legal scholars. From a political perspective, conservatives have recently blasted.

These universal preliminary injunctions because they've been issued against the Trump administration. [00:24:00] Republicans like White House Advisor Steven Miller have gone so far as to claim, quite stupidly, in my opinion, that these injunctions equate to a judicial coup against the Trump administration. But as I've said on a past episode, what is rich about Miller is he himself sought these universal preliminary injunctions against the Biden administration when President Biden was in the oval.

And that just illustrates the plain hypocrisy on both sides. Now see when a Democrat is in the White House, Republicans love these universal preliminary injunctions. But when a Republican is in the White House, the tone flips. Republicans suddenly hate universal preliminary injunctions because now they're blocking a Republican president from implementing or enacting his agenda.

But the same is true with [00:25:00] Dems as well. Let's be fair here. Dems hate it when a Democrat like President Biden is in the White House. They hate those preliminary injunctions yet Democrats love it when the Republican is president. In this way, in my view, the increase in universal preliminary injunctions that we've seen during this century, we've seen this increase because they have become a popular political tool for opponents to seek against a presidential administration to block the president from trying to do what he's trying to do.

You don't like a policy program in order from the president, well just sue him. Seek a universal preliminary injunction and block the president from doing it. Course. To be fair, this form of injunctive relief is also sought in other scenarios, but that conversation is outta scope since we are discussing the particular case against the Trump administration that the Supreme Court decided last week.[00:26:00]

So what did the courts say? It concluded that universal injunctions are, quote, likely outside of the legal authority of the district courts. Justice amy Coney Barrett wrote the opinion on the behalf of the super majority, all conservative leaning justices agreed, and all liberal leaning justices dissented.

Now, while this case was six to three along the ideological split, I wonder whether that split would have been the same if this case was about universal injunctions issued against the Biden administration or perhaps a future Democratic administration, food for thought. Anyways, that's a thought experiment for another time.

What we do have is the majority held that district courts do not have the legal authority to issue universal injunctive relief because Congress did not give them that authority in the Judiciary Act [00:27:00] of 1789, and I'll come back to that act here in a second, but let me just add what the liberal leaning justices said.

The dissent argued among several things to be fair, that universal preliminary injunctions serve a critical role in blocking clearly unconstitutional and unlawful actions by the executive branch, and in this case. With respect to birthright citizenship, that is clear.

What Trump seeks to do with birthright citizenship is blatantly unconstitutional. Okay? A second ago I mentioned the Judiciary Act of 1789. Let's dive into that for a second. By now, most of you likely know that it's the Constitution that creates the system of government that we know today. Article one gives Congress its powers.

Article two gives the President his powers, and Article three establishes the federal court system. Well, the only court that the Constitution [00:28:00] expressly created is the United States Supreme Court. That's it. All other federal courts were not created by the Constitution. Rather, the Constitution says, let Congress create all other inferior courts that might be necessary.

And it did. Enter the Judiciary Act of 17 89, 1 of the first congressional actions that created the federal court system and those courts that are subordinate to the United States Supreme Court. The Judiciary Act of 1789 established the structure and jurisdiction of the federal court system.

This was the birth of this three tier judicial system that we have in the federal courts. All lawsuits are first filed in the district court, which is the trial court of the federal system. And if and when a case is ready for appeal, then it goes to the Federal Circuit Courts of Appeal. And today there are [00:29:00]13 circuit courts.

So the question really was whether the Judiciary Act of 1789 granted, the district courts the authority to issue universal preliminary injunctions. This is where it gets hairy. So the Judiciary Act of 1789. Granted district courts equitable jurisdiction, what does that mean? Well, at a high level, there are two categories of relief, AKA, what a court can do to fix or remedy an alleged injury.

First, we have legal remedies, and then second, we have equitable remedies. And the distinction traces back to England's courts of law and courts of equity separation. Courts of law primarily dealt with awarding monetary damages as a remedy for legal wrongs, such as breach of contract issues. Courts of equity, on the other hand, focused on providing remedies beyond [00:30:00] monetary damages.

These remedies included for, for instance, injunctions. Which are court orders to stop doing something, stop committing a harmful or injurious action. This also included court orders of, say, specific performance requiring a party to fulfill contractual obligations under contract law. Now that said, the, the, the Judiciary Act of 1789 granted both equitable and legal jurisdiction to the federal court system here in the United States, and federal courts could grant legal remedies as well as equitable remedies.

As I just mentioned, injunctive relief is a classic form of an equitable relief. Thus, in the birthright citizenship case, Trump v. Casa that we've been talking about, the court had to look back at whether the Judiciary Act of 1789 gives district courts equitable jurisdiction, right? The [00:31:00] legal authority to issue equitable remedies, and it's clear.

It does, it does extend equitable jurisdiction to the federal courts. Well then the question becomes to what extent are there any limitations to that equitable jurisdiction conferred to the district Courts in the Judiciary Act of 1789? And that, ladies and gentlemen, is what Trump v Casa is truly about.

The court said no. The court said the Judiciary Act of 1789 does not give district courts the ability to issue universal injunctions. Rather, district courts are limited. They can only grant equitable relief like injunctive relief to the particular parties of the case before it.

In other words, the Supreme Court said that District courts could not issue injunctive relief to anyone who is not a party to the case before it. This decision, not [00:32:00] surprisingly, has garnered a split of opinions. Some argue that it was rightly decided. I think Professor Ilan Wurman at Minnesota takes this view.

Others argue that it was wrongly decided, such as Ilya Soman, professor Ilia Soman at George Mason. And as the latter, uh, as Professor Soman stated on Twitter quote, today's Supreme Court decision bar in nationwide injunctions is a grave error, potentially empowering, extensive federal government lawlessness.

How, though, how might this decision empower extensive federal government lawlessness? Well, consider this hypothetical. What if, what if. Some. This may be farfetched, but go with me here. What if the Trump administration ordered the A TF and the FBI to seize all guns in the country? This would be a clear violation of the Second Amendment right?

Of course it would be, of course it would be a clear violation [00:33:00] of a constitutional right to bear arms of the Second Amendment.

So what can a person do to stop the A TF and FBI from seizing their guns? Well, perhaps what nonviolent things could a gun owner do? Well, you would likely file a lawsuit in federal court and seek injunctive relief. Now, following the Supreme Court's ruling in Trump v. Casa, the district court can no longer issue a nationwide injunction, but it can issue a.

An injunction in your particular case, it can bar a TF and FBI from seizing your guns, but its equitable jurisdiction no longer extends any further than that because an injunction in your case is now complete relief for you. So you can file a case. But what about the millions of people around the country who do not have the [00:34:00] know-how or the financial resources to file a lawsuit to seek injunctive relief from this clearly unconstitutional hypothetical guns seizure order from the Trump administration?

Well, on one hand you can say that they're out of luck, but on the other hand, the court said in its decision that a class action lawsuit might be the more appropriate pathway to obtain a nationwide injunction. And in the case of a class action though, now you have everyone who is similarly situated, is the term.

So in this hypothetical, that's all gun owners, as technically plaintiffs in the case. Thus, if a district court agreed with the underlying claim and the legal standard to grant a preliminary injunction is met, then the district court could in effect, issue a nationwide injunction in joining the federal government from seizing [00:35:00] all of these guns under a hypothetical seizure order from a Trump administration.

Seems silly, doesn't it? It's more of a technicality. Now, any district court must proceed with a class action process, a process that we do not know how it will play out with patently, unlawful or unconstitutional actions by the executive.

We'll kind of have to wait and see how this class action process plays out. So this case now, the Trump Causa case gets sent back down to the lower courts to figure out the merits of the case. That is the constitutionality of the executive order itself, the executive order that basically sought to rewrite the Constitution and bar birthright citizenship when babies are born to non-citizens, despite those babies being born in the United States on US land.

Meanwhile, immigration groups have. Already filed class actions almost immediately after the [00:36:00] ruling was released on Friday to block the Trump administration from enforcing the executive order. We'll see how those cases play out in the coming days. Okay, switching gears, let's turn to the second case of the day.

That's Free Speech Coalition versus Paxton. And this case is about a Texas law that requires pornography websites to verify the ages of all users before allowing the users to view their content. At the core of this case is the general prohibition that minors cannot view or access porn websites.

Now, the adult entertainment industry sued to block this age verification requirement, arguing that any age verification poses an undue burden on the adult users and their right to access the material that is subject to free speech and free expression protection of the First Amendment. The court acknowledged that there is some burden on the adult [00:37:00] users, but it concluded, I think, correctly, that it's only an incidental burden, and for that reason it's constitutional.

Now, here's the narrative that conservatives jumped on when this decision was released on Friday, and I will say it's completely misleading. Republicans noted that the liberal justices dissented in this case. That is true. The liberal justices dissented, but the Republicans falsely claimed that the liberals dissented because they don't want age verification laws to shield minors from adult content.

That is not true. That is not what the dissent said. There are two parts to the decision. The first part is what test or what we say is level of scrutiny should apply to the challenge to law. The second part is, once we've identified the proper test or the level of scrutiny, does it pass or fail that test?

Let me explain. [00:38:00] In First Amendment world, if you challenge a law and argue that it's unconstitutional under the First Amendment, most of the time that law would be subject to strict scrutiny. That's the name of the legal test that the courts must apply according to the Supreme Court. This means that the challenged law, whatever that law rule or regulation is that you allege is infringing on your First Amendment rights.

It must be narrowly tailored to achieve a compelling government interest. In other words, for a law to pass. Constitutional muster, it must be narrowly tailored to achieve a compelling government interest.

So I said most of the time, court apply strict scrutiny, but depending on the nature of the underlying claim, the court might apply intermediate scrutiny, which is a less stringent standard. It's an easier test for the government to meet to [00:39:00] prove that a challenged law rule or regulation is constitutional and should remain in place. For intermediate scrutiny, the government must show that the law is substantially related to furthering an important government interest.

So strict scrutiny, we use the compelling standard. The government's objective with whatever it's trying to do must be compelling. For intermediate, we use the important standard. The government's goal must be important, but not necessarily compelling. On the other side. For strict scrutiny, the law must be narrowly tailored to achieve that compelling government interest.

But for intermediate, how the government achieves that important interest is given a little bit more flexibility. It only needs to be substantially related to that important interest. With that background context in mind, the court said that intermediate scrutiny applies to Texas' age verification law.

And when applying [00:40:00] intermediate scrutiny, the court said it passes constitutional muster. Thus, it's constitutionally permissible and contrary to the Republican's false characterization, the liberal justices who dissented merely believe that strict scrutiny should apply, not intermediate scrutiny. So to be crystal clear, they did not say that the age verification law should be struck down.

They did not say that minors should have access to adult material. They did not say anything of that nature. They said simply that a different legal test should apply to the age verification law. I'll read directly from, uh, the dissent written by Justice Kagan. No one doubts that the distribution of sexually explicit speech to children of the sort involved here can cause great harm.

No one doubts that the states have a compelling interest in shielding children from that [00:41:00] kind of speech. What is more children have no constitutional right to view it. End quote, it's plain as day. The dissent says children must be protected from pornography. But the dissent went on to say that adults have a constitutional right to view the very same speech that a state a government may prohibit for the children.

That is true. You might disagree as to whether adults should have a constitutional right to view the adult material, but nonetheless, the court has been clear on this issue. You have a constitutional right as an adult to view adult material, and Justice Kagan continued on to say, quote, the state should be foreclosed from restricting adults' access to protected speech if that is not in fact necessary.

End quote. And [00:42:00] in this case, the dissent argues that the burden placed on the adults access is perhaps too much as to warrant strict scrutiny versus intermediate scrutiny. In other words, the dissent concluded that the age verification law is a direct burden onto adults' right of access and not an incidental burden,

as the majority concluded. Now, I, I disagree with that. I actually disagree with the liberals on this. In my judgment, I conclude that it is an incidental burden on adults' right of access. Of course, like the adult entertainment industry argued, adults might be dissuaded from accessing pornography websites because they must verify their identities now before gaining access.

But it's relatively easy and painless for websites to implement the age or ID verification technologies [00:43:00] onto their websites. In fact, most already have paywalls logins and portals like any ordinary website, and there are a slew of tech vendors who offer essentially plug and play age verification solutions.

In theory. Let's take an actual example. PornHub could have an age verification system set up and working within 24 hours. It's. Possible, but of course they don't want to. And that is the key motivator behind this case. That's the issue. The fear that their consumption rates will decrease, and that might be a legitimate fear.

I think it's well founded, but there's a trade off, right? To what extent do we allow an incidental burden on adults' constitutional rights to protect children's safety? Seems like an incidental burden isn't too much to ask here. Now, apply that rationale to the Second Amendment, and suddenly [00:44:00] the same supporters of this law, I'm looking at you, Texas, flip the script and say, absolutely not.

No burden whatsoever on my right to bear arms, despite guns being used to murder school children. See the unfortunate Sandy Hook massacre as an example. Now I digress, but here I actually agree with Justice Thomas, believe it or not, I know it's crazy. He wrote that adult entertainment websites are actually incentivized to keep their users information private.

That's true. I think privacy suddenly becomes a competitive advantage for these websites because robust privacy practices could mitigate users' concern about the identification and age requirement. I mean, think about it for a second. If you are, if you are a Texas person who wants to view adult material, then you must verify your age and your [00:45:00] identity.

It follows that you might be more inclined to visit an adult entertainment website that is upfront and clear regarding their privacy practices because you're likely going to visit that website over another website that you don't trust. But then again. The counter argument is perhaps that will drive adult users to sketchy websites that disregard the age verification requirement, or perhaps that will cause adult users to use VPNs to spoof the age verification process by changing the user's geolocation.

We'll see.

The third case to discuss today is, at least to me, one of the most offensive decisions of this term. The third case is Mahmud versus Taylor, and at issue in this case are some books containing L-G-B-T-Q content, like same-sex couples. What happened here was a Maryland school district [00:46:00] added these books to the curriculum.

The Board of Education initially allowed parents to opt out of the instruction pursuant to the district's internal guidance on religious accommodations.

But according to the case, the Board of Education rescinded the opt-out. It said that it could not accommodate the growing number of opt-out requests without causing significant disruption to the classroom environment. Several parents sued to block their children from any instruction related to these books, and they cited religious liberty and parental rights.

The plaintiffs who sued the Board of Education were parents who come from diverse religious backgrounds and hold sincere views on sexuality and gender identity, which they wish to pass on to their children. The Supreme Court concluded that parents are entitled to a preliminary injunction, thus reinstating that [00:47:00] opt-out program, but it's the court's reasoning that is troubling to me.

See, oftentimes policy wonks and lawyers, I use the term manufacture, they manufacture cases. Now, to be clear, that doesn't mean they make up fake cases. No, these are very much real cases with real plaintiffs and real injuries alleged. That said, there are countless special interest groups that finance litigation to drive a particular policy agenda, and both sides do this.

Both sides. Liberals have manufactured cases to drive a liberal policy agenda, and conservatives have manufactured cases to drive a conservative policy agenda. Now, my disclaimer here is I have no actual knowledge that that is what occurred in this case, but I suspect it to be the case here because there's a [00:48:00] concerted effort to attack L-G-B-T-Q persons and issues broadly speaking by the conservatives.

And this isn't new for years. The fight centered on marriage equality, we know how that turned out. Obergefell v Hodges concluded that same-sex couples have the right to marry as opposite sex couples. Now we see conservatives attack transgender healthcare and the L-G-B-T-Q versus religious liberty issues in public accommodations, for instance.

And in this case, the Supreme Court said that the Board of Education's decision to withhold notice and an opt-out mechanism unconstitutionally burdens the plaintiff's religious exercise. So what you might be saying, let the parents opt out, let the parents opt their children out of this part of the curriculum.

Here's how I see it. Again, it's the reasoning that [00:49:00] is troubling. What if a children's book presented an interracial opposite sex couple? Per the court's ruling, the parents are constitutionally entitled to an opt-out mechanism if interracial marriage is against their sincerely held religious beliefs.

What if a local public school teaches evolution? If the parents sincerely held religious beliefs center on creationism, then the public school must provide the parents with an opt-out mechanism for the curriculum on evolution.

What if a parent sincerely believes that the earth is flat? Must a public school provide an opt out for the parents? If the parents do not want their child to learn that the earth is round? The case suggests the answer to that question is yes.

What if parents sincerely believe that we never landed on the moon in the 1960s, that the whole moon landing was staged? What if that was a sincerely [00:50:00] held religious belief? Could they claim a religious exemption for their children, thereby removing the child from the lesson about the moon landing?

Again, this case suggests that the school must provide parents that opt out. Okay, here's one. What if a gay couple who have a child in the local elementary school want to opt their child out of any curriculum that presents a heterosexual relationship because it's against their sincerely held religious beliefs.

You might think, okay, professor Wayne, that's preposterous. But that's the same scenario presented in the case that the Supreme Court decided heterosexual parents want to opt their child out of any curriculum that discusses reveals or touches upon gay marriage. So yes, this case was about L-G-B-T-Q [00:51:00] inclusive curriculum, but it's also about where we draw the line constitutionally with respect to when and to what extent do we allow parents to present a religious opt-out.

At what point do we say that there are some fundamental educational learnings that every child must learn in public school, regardless of any contrary religious beliefs such as evolution, or the world is round and not flat. Now imagine for a second, being a public school teacher, that job is already incredibly difficult.

So shout out to every public school teacher out there, and in particular, those teachers who I was so fortunate to have growing up. Now, the public school teacher job is already incredibly difficult, often with way less pay than teachers deserve. The average elementary school class size, according to my very quick research, is about [00:52:00] 20 students.

Of course it is lower in some parts of the country and higher in other parts. But let's say 25% of the parents in a 20 student class request an opt out for the evolution lesson. This means five students have opted out. So practically speaking, does the teacher have to plan another lesson for the five students because their parents don't want them to learn about evolution.

When the teacher finishes a unit of instruction and it's time for that assessment, that quiz, that test, must the teacher create a different assessment because several students opted out of the lesson that is being tested. Let me ask you this. How does a public school teacher fairly and equitably assess students when some have opted out of the lesson and others have learned material?

To be clear. I am not [00:53:00] saying that there is no place for religious accommodations in public education. Quite the contrary, I believe that we should have religious accommodations because we are a country founded on the free exercise of religion, whatever that religion may be. Moreover, I believe parents have the right to raise their children according to whatever religious beliefs that they want to instill.

But I also believe that there comes a point in which we must say that there are widely accepted and indisputable facts that all children must learn for us to have a minimally competent society. So here's the issue that I take with this Supreme Court decision. There is no limiting principle. Sure.

Justice Alito, who wrote for the majority, by the way, I. Said that these L-G-B-T-Q themed [00:54:00]books are un mistakenly normative. That's what he used. That's what, that's the term he used, and that they are designed to present certain values and beliefs as things to be celebrated and certain contrary values and beliefs as things to be rejected. Be that as it may, couldn't the same rationale apply to interracial marriage, as I mentioned earlier, couldn't the same thing apply to views regarding racial superiority or supremacy?

So let me pose it this way, is racial supremacy and inferiority unmistaken normative, which is the language that Justice Alito used if it is taught as part of the Civil War or the Civil Rights Movement curriculum. Is it something that is designed to present values and beliefs as things to be celebrated and certain contrary values and beliefs as [00:55:00] things to be rejected?

The Supreme Court said, Nope, you must provide a religious opt-out. And Justice Alito again, for the majority said that L-G-B-T-Q inclusive curriculum is subject to strict scrutiny. Review what I previously said about strict scrutiny on our last case. But here's the thing, while I acknowledge and agree with most challenges under the First Amendment are subject to strict scrutiny.

That fundamental principle, this one, I think cuts against deploying strict scrutiny. See, the court decided years ago in a case called Employment Division versus Smith. That neutral laws of general applicability do not trigger strict scrutiny. Rather, they should be reviewed under a rational basis review where the court asks whether the government has any rational basis for the law rule or [00:56:00] regulation.

If the government incidentally burdens religious exercise via a neutral law of general applicability, then that government action should get rational basis, not strict scrutiny review, but Justice Alito just dismisses this Smith doctrine and says, Nope, strict scrutiny applies. To be fair, I recognize it's a tough issue in most cases that end up before the Supreme Court present incredibly difficult issues.

But all of that said, I find it a bit rich that conservatives who are quick to complain about the L-G-B-T-Q community pushing their lifestyles on everybody else. First in line to support legislation that requires, for instance, the postage of the 10 Commandments in public school classrooms. Now, to be fair, I think many conservatives understand the dissidence on this.

I say it's talking outta both sides of your mouth. That's the kind of [00:57:00] phrase I use. I say it's talking outta both sides of your mouth when you say, I need an opt-out mechanism for my child, because we religiously disagree with that lesson. Yet you insist on a clearly religious document like the 10 Commandments being posted in a public classroom where all students, regardless of their religion, must see it.

Oh, and by the way, no opt out on that one. It's not like you can opt your child out of the classroom with the 10 commandments posted in a state that requires the postage of those 10 commandments in all public classrooms in that state. I should add that several Republican LED states have recently enacted laws that require the postage of the 10 Commandments in public classrooms.

I'm not making this up. This is not a made up example. Now, those laws have been enjoined by federal courts as violations of the establishment clause, but almost [00:58:00] certainly they will be appealed if they haven't already, because conservative proponents of this mandate want the case to get through the Supreme Court in hopes that the Supreme Court will bless the laws and allow states to require the postage of religious material in public classrooms.

That's where I see this going.

You might be saying that I'm a bit hypocritical for criticizing the outcome of this case when I argue that the court got it wrong, or when I suggest that parents shouldn't have the opt out right when the curriculum deviates from their sincerely held religious beliefs.

But to be clear, I wanna be crystal clear. I believe that the court got it wrong because I believe that the majority applied the wrong legal test. To be clear, I do not mean to suggest that we should do away with opt-outs in their entirety. Absolutely not. My position is, to put it in the [00:59:00] plainest terms as possible, that there must be a limiting principle, which the majority in Mahmud v Taylor did not put forth in their opinion last week,

to close out today's episode, I want to just highlight some potentially good or feel good news. A video has made its way around on social media that shows Taylor Swift. Everyone knows Taylor Swift going into a hospital room at DiMaggio's Children's Hospital and she introduces herself to the patients in the room.

She goes, hello, I'm Taylor. And one of the patients, the young boy who's in the foreground goes, well, yeah, or duh, right? As if like, Hey, everybody knows who you are. Taylor, why are you introducing yourself? It's really quite the comical video. If you haven't seen it. It's a good feel [01:00:00] good video to check out.

That's it for today's episode of Discourse. Thank you for tuning in and being part of the conversation. You can catch future episodes of discourse wherever you get your podcasts. If you found this discussion insightful, be sure to subscribe, leave a review and share it with others who value thoughtful analysis over the noise.

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