The Cross Examiner/Graham: Welcome to another episode of the Cross Examiner Rocket Docket, where you are the judge here. We brief you on the news of the day so that you can issue a ruling. Get ready to hear the arguments, because court is now in session. Welcome, welcome. Welcome to the Cross examiner podcast. I am m the cross examiner. I am an attorney, I am an atheist, and I am alarmed. I’m alarmed by the rise of christian nationalism in the United States. And I’m more alarmed by the massive amount of misinformation that’s powering that rise. This is a rocket docket episode. It’s unscripted. I’m reacting to the news. I want to get this out as soon as possible. So forgive the ums, the AHS, the pauses, as I need to look things up. but what we’re going to be talking about today, if the title of the episode didn’t give it away, is Louisiana has, now mandated that the Ten Commandments be displayed in every public school classroom. Texas tried this last, ah, session. They had it for procedurally didn’t get through. They ran out of time here. Louisiana sealed, the deal, so to speak, with their governor, signing it and saying, this is the best bill, the happiest he’s been, I think, is the quote, or the most satisfied he’s ever been, signing a bill into law, which should speak to most people about how crazy Louisiana is. Now, it’s easy to look at this and say, that’s unconstitutional, right? That’s crazy. The state can’t come in and say, hey, let’s put, copies of christian scripture on the wall of every public classroom, right? Yeah, it should be unconstitutional. But we have this little issue called, the McConnell court. So you may recall McConnell refused to seat Obama’s nominee for replacing, Supreme Court justices. he ran out the clock, so to speak, in dirty politics that they place so well on the GOP side of the aisle. So when Trump took office, he got to insert three justices into the supreme Court, making it an overwhelmingly, christian, nationalist centered set of justices that have control over the court. And that is exactly why these bills are being introduced now. So what I’m going to do today is I’m going to go through the history of First Amendment law, the, important milestone cases to center us to understand deeply, because I’ve done this in the past at a higher level, but this, this law under this court, this is a real threat. This is the real deal. This is why I want to take the time, because if you get into discussions with your MAgA relatives, and they start talking about the talking points that the Louisiana governor, and legislators who support this bill throw at them. I want you to be able to push back and have all the facts at your fingertips. So what we’re going to do is I’m going to read the law, the operative pieces of the law, so we can understand it. Then we’re going to. We’re going to do a little bit of a deep dive on. Wait a second. Shouldn’t this violate the First Amendment? And, in order to answer that question, we have to understand the First Amendment, and we have to read a few key cases that the Supreme Court in the past has decided that relate to this. So you can see that, yes, clearly, up until 2022, this would have been clearly a, case that would have not even gotten to the Supreme Court. They would find it unconstitutional in the lower courts, and the Supreme Court would not even take this up. But today, in 2024, there is a real risk, and not even a small risk, a substantial risk, that this court will not only take this case when it eventually gets to them, but they may find that Louisiana is allowed to do this under the Constitution, and they will be wrong. They will be inserting their own religious preferences into the Constitution and subverting it. And that is the definition of christian nationalism. And that is why I am so eager to get this in front of you. So you will have all the facts. So let’s start with the law. I’m going to read it. I’ll put. I’m doing this on YouTube as well, because I want to be able to put some screenshots up. So I normally just do podcasts. I’m doing video here, so forgive me for sometimes, not looking at the camera, things like that. But the operative parts say that basically no later than January 1, 2025, I’m going to read this exactly. Each public school governing authority shall display the Ten Commandments in each classroom in each school under its juris. Excuse me. Jurisdiction. So, public schools. They specifically say public schools. The nature of the display shall be determined by each governing

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The Cross Examiner/Graham: authority. So each district, with a minimum requirement that the Ten Commandments shall be displayed on a poster or framed document that is at least eleven inches by 14 inches. The text of the Ten Commandments shall be centered, it’s the central focus of the poster or framed document, and shall be printed in large, easily readable font. So you determine what the poster looks like, districts, but it must contain the Ten Commandments. It must be large and easily readable. They don’t define yet what does that mean? From how far away? but large and easily readable font. And, it must be this. The Ten Commandments must be the central focus of the poster. So number two, the text shall read as follows. And I want you to count along with me here because there’s an interesting point to be made. So the first, they say the heading, the ten commandments on one line. And the next one. I am the Lord thy God. So with I am in all caps, Lord, in all caps, I am the Lord thy God. That’s the first two sentences your kindergarteners are going to read when they come into the classroom on their first day of school. So here, let’s go through, the commandments. They list. One, they don’t print the numbers. but I’m going to count them off for you. One, thou shalt have no other gods before me. Two, thou shalt not make to thyself any graven images. Three, thou shalt not take the name of the Lord thy God in vain. Four, remember the sabbath day to keep it holy. Five, honor thy father and thy mother that thy days may be long upon the land which the Lord thy God giveth thee. Where are we? Six, thou shalt not kill. Seven, thou shalt not commit adultery. Eight, thou shalt not steal. Nine, thou shalt not bear false witness against thy neighbor. Ten, thou shalt not cover thy neighbor’s house. Eleven, thou shalt not cover thy neighbor’s wife, nor his manservant, nor his maid servant, nor his cattle, nor anything that is thy neighbor’s. Eleven. Sure enough, there are eleven commandments in their list of ten commandments. Why is that? Well, my understanding and I was not raised religious, but in doing some research on this, different sects of, Christianity will combine certain commandments, like the first two, will be combined into one in certain, belief systems, maybe let’s say, catholic versus protestant. And in others, the last 2 may be combined into one. And they couldn’t agree in Louisiana which version. And this is a pattern that we’ve seen, which version of the Ten Commandments to use. So they just listed all eleven. Because I’m going to assume it’s Catholic versus protestant. Let’s make it easy. Catholic versus protestant. If they both have two different versions of the Ten Commandments, they probably ended up in a debate about which ones to use and nobody, would give in. So you end up with this eleven commandments on your child’s ten commandment posters. I don’t know about you, but when the smart kid of the class in kindergarten looks at this poster and points and says, 1234-5678 910. Eleven. And then raises their hand and says, dearest teacher, why, if it says the Ten Commandments are there eleven on there, what is the teacher supposed to say? Right? That whole discussion I just had with you about, intersectional differences, between theology. That’s not a conversation we want our kindergarten teachers having with kids, much less having the kid raise his hand and say, what is it? What does it mean to commit adultery? Could you please tell me? Dear Teacher, I just learned to read, and one of the first words I’m learning to read on this wall is adultery. What is that? Is that what we should have in our kindergarten classrooms? Well, in Louisiana, they think it’s just fine. So this hearkens back to, I think it was two decades ago, Louisiana tried to make the Bible their official state book. You know how states have a bunch of official state crap that’s meaningless? They just do it to either help some sort of industry or to get people to rally behind things. I’m from Maryland, our official state sport. I can never keep track as to whether it’s jousting or lacrosse. I actually think it’s jousting. Believe it or not. we have a great renaissance fair. So maybe that’s doing it, or maybe it’s just a holdover. so in Louisiana, they wanted to make the Bible

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The Cross Examiner/Graham: the official, state book. But what happened? Why isn’t it these days? It never got out of their legislative body because they couldn’t agree on which version of the Bible to use. And we see this again and again, whenever christians are left to themselves, they start fighting amongst themselves. We can’t agree as to which version of the Bible to use. We can’t agree as to which version of the Ten Commandments could use. And that should tell us something about Christianity as a whole. Right? If this was the most important message in the entire universe, that is, there could be an afterlife. This may not be it. You may be able to live for all eternity. Wouldn’t the person who is creating the rules about how to get there make it pretty clear not not have it? So there’s 40, 00, 10,000 different versions of Christianity alone in the world? I don’t know. You’ll have to tell me. But. But let’s move on. I’ve got a lot to say in that. A lot of time. So this is the Ten Commandments. And then they say, the Ten Commandments shall be displayed with a context statement as follows. I’m not going to read it. It basically says, the, history of the Ten Commandments is important to the country, and it cites a couple of events in the history where the Ten Commandments were referenced. It’s three paragraphs, and it has no rules as to how prominent that statement must be. They were very careful to say, hey, this must be. The Ten Commandments must be printed in a very large font and easily readable, presumably from anywhere in the classroom. But when they say, we want to put this disclaimer, which we’ll get to why they’re putting the disclaimer entitled the History of the Ten Commandments in american public education, the reason they’re putting that in there, we’ll get to later. They, don’t say how small that can be, and you can bet it’s going to be fine print in most of these classrooms. so then it says in section four, a public school may also display the Mayflower compact, the Declaration of Independence and the Northwest ordinance as provided in, RS, 20, 512 82, along with the Ten Commandments. So you must display the Ten Commandments. You may display these other documents as if that means anything. Right. It. Was there a previous law that said you couldn’t display the Mayflower compact? Would a teacher get in trouble for displaying the Mayflower compact before this law? No, this is, again, cover. It’s similar to this disclaimer as to why they’re trying to cast the Ten Commandments as just another document. so then they go, to section five that says, this section will not require public school governing authority to spend its funds to purchase displays. In order to fund the displays, free of charge, the school public governing authority shall do either the following one or, a, accept donated funds to purchase, or b, accept donated displays. This is a very common theme when christian, nationalists try to sneak in laws they know are violative of the First Amendment’s establishment clause, they try to dodge a specific argument, which is, the government shouldn’t spend money to favor any one religion. And, they’re trying to avoid that here by saying, you don’t have to spend your money on this. Just accept the donations of displays that we know the communities around you will be glad to print and put in your classrooms. think about this. The fact that they have to say this is telling. If they create a law that says, we, require you to post copies of the constitution, or let’s just say the Bill of rights, right? Another ten sort of rules to follow. You must display a copy of the Bill of rights in every public classroom. Do you think they would have a section that says, the section shall not require a public school governing authority to spend its funds? You must accept donated copies of the Bill of Rights. No, the only reason this is in here is because they know they’re violating the constitution and they’re trying to act like, well, you can’t say that we tax and spent on religion. It’s an empty argument, which we’ll get to. And the rest of this is just procedural, stuff, talking about when and how and who has the authority to do all of this. So let’s. Let’s cut to the chase. Is this constitutional? like I said before, 2022, I would have said, that’s laugh. That’s a laughable question. Of course it’s unconstitutional. But something happened in 2022 that made me not so sure. So we’re gonna work our way up to 2022. I’m gonna give you a few basic dates and cases that you should remember. There. There’s about four big cases you should remember. If you wanna get into, a skirmish about this at the thanksgiving table with, with Aunt Bertha, of course, you need to know that the constitution took effect in 17, 88. And the

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The Cross Examiner/Graham: Bill of Rights took effect in 1791. Okay, so those are the two big ones. Bill of rights, which contains the first amendment. 1791. It’s not 1776 like people think. 1791 is the bill of rights. So, the first case, the earliest case where the supreme Court really gets into first amendment, the. The separation of religion and government, and the tension, or the apparent tension between the establishment clause of the first amendment and the, free exercise clause of the First Amendment is a case called Reynolds v. United States in 1878. So this is 87 years. 87 years. Two to three generations. Four generations after the Bill of Rights. So what does the First Amendment say? Let’s start with that. The First Amendment says, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. And then it goes on to talk about freedom of speech, of press, the right of the people to peaceably assemble, and to petition the government for redress of grievances. But the two clauses of this amendment that are matter to this case are, Congress shall make no law respecting an establishment of religion. That’s the establishment clause. Congress shall not make a law respecting or about, or regarding, or affecting the establishment of religion. And then it has a comma. Or prohibiting the free exercise thereof. The free exercise of religion. So Congress shall make no law respecting an establishment of religion. You can’t create an official religion, you can’t promote a religion, and you can’t make a law prohibiting the free exercise of religion. So I can’t make a law, as Congress that says you can’t say, that you love God or that you believe that Jesus Christ is the savior. I can’t do that. That’s me prohibiting the free exercise of your religion. Now, there’s a natural tension here. If I claim that my religion allows me to do something that’s illegal, my religion allows me to go on a killing spree once a year. So when I go out and kill people during my purge, the government telling me I can’t do that would be, prohibiting the free exercise of my religion, right? Well, no. and this particular part of our case, law was decided in that case from 18, 78, which was Reynolds v. Us. Interestingly enough, my Mormon, and ex Mormon followers, I know I’ve got a decent number of them at this point, will love to know that this case, Reynolds v. Us, was, from Utah. So let’s guess, in 1878, what law was a person violating that they claimed was a religious practice, and that if the law criminalized it, it would violate their first amendment rights? I’ll give you two guesses. And your second guess doesn’t count. It was bigamy. So for those of you don’t know, the church of Jesus Christ of Latter day Saints, otherwise known as the Mormons, settled, in Utah 100 and something years ago, 50, 40, some somewhere in that. And, they practiced polygamy for a long time. At first, in secret, the leadership did Joseph Smith and Brigham Young, and then more out in the open. So this case, Reynolds v. Us, is, Reynolds was a man who had, married two women, and he was, arrested and convicted of bigamy. And that, the law in that territory in Utah at the time said, ah, bigamy shall be punished by a fine of not more than $500 and an imprisonment for term of not more than five years. I don’t have on the record what he was sentenced to. He may have been, he may not, have been sentenced by the time this appeal took place. I don’t know. So at the time of the trial and trial, keep in mind, is where you establish facts. The supreme Court doesn’t establish facts. And that will be important later when we look at the, at the McConnell court. We need to remember this. Trials establish facts. If a jury comes up with a fact that says this guy did, in fact, commit, bigamy, and maybe on the jury questionnaire, form says, did he knowingly marry this person while he knew he was already married to that person? Yes, that yes, that’s it. Once the jury says that no appellate court, no supreme court, no legislator can come in and say, no, no, no, you need to change that answer to a no. That’s a right that’s enshrined in the constitution itself, that no, fact found by a jury can be overturned by any other body. So at trial, they found that, yes,

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The Cross Examiner/Graham: he was, in fact, guilty. And he argued and introduced into evidence, unrebutted, that this was a holy practice. My church condoned it. My priest, or bishop or whoever married him condoned it and was aware of it. He was told by the members of the church that you have to practice polygamy. And if you don’t, you will go, you will be, He quotes, failure would be damnation in the life to come, failure to practice polygamy. So this, is clearly, there wasn’t a question of the doubt that this was the practice of the mormon church. It was part of their religion. So the Reynolds court looks at this and says, all right, we need to resolve this tension between the establishment clause and the free exercise clause. I can’t establish a religion. I can’t promote a religion, but I also need to let you exercise it. And if I am, creating a crime, if I’m criminalizing behavior that your religion finds holy, aren’t I establishing all other religions, more than yours? Am I punishing yours? I’m singling yours out. And so this court, this is the first time I found this. This court dives into the history. They take, paragraphs and paragraphs to explain the history here. And in their paragraphs, you can find a very interesting story that relates directly to what Louisiana is doing today. And I’m going to go into that. The story is back in 1784. So this is four years before the constitution takes place. is, ratified, I should say. Virginia, Jefferson state. Jefferson’s home state is considering, the house of delegates is considering, quote, a bill establishing provision for teachers of the christian religion. And this bill would be what Texas was trying to do, or a version of what Texas trying to do, but actually worse, it’s trying to hire teachers for their public schools who will come in and teach Christianity. Preachers, basically, to come in and convert kids or ensure that the kids remain christian. They, introduced that in 1784. They say, we need the commonwealth of Virginia to talk about this. So we’re not going to even vote on it for a year. And during that time, all of the famous founding fathers from Virginia are up in arms. Jefferson, Madison, the rest. Right. Madison prepares a document called a memorial and remonstrance, which was circulated all over the place inside, in which he demonstrated, that, quote, religion or the duty that we owe the creator was not within the cognizance of civil government. That’s his argument again. Civil government. Civics in that sense. Not civilized and polite, but civil government has no business, even contemplating religion or the duty that we owe a creator. So this is circulated, it’s published in papers. everybody is talking about this. And in the next session, a year later, this bill is not only defeated, but a different bill drafted by Thomas Jefferson, which he had written like, seven years before this. He reintroduced this, and it was called for, it was a bill, quote, for establishing religious freedom. That bill was passed in its place, and the preamble of Jefferson’s bill for establishing religious freedom says that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy which at once destroys all religious liberty. Let’s break that down. That’s a little complicated. And if you’ve listened to a previous episode, I have talked about this quote before, so, I apologize for repeating, but it is one of the most important sentences that was written by our founding fathers. And yet another piece of evidence that shows that any christian nationalist who says this is a christian country was founded as a christian nation is lying. They’re mistaken or they’re lying. So that to suffer the civil magistrate so to allow a government official to intrude his powers into the field of opinion, so to allow a government official to exert control over people’s opinion, discourse, preaching, and to restrain the profession or propagation of principles. So to allow the government official to restrain, to prevent people to profess, say, declare, or to propagate the propagation, to spread principles, ideas,

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The Cross Examiner/Graham: on the supposition of their ill tendency. So the he’s talking about, if we allow the civil magistrate, if we allow the government to restrain the profession of concepts, the discussion of ideas, the discussion of religion, on the supposition of their ill tendency, because we presume that these things will have bad effects, they tend to bad outcomes, is a dangerous fallacy which at once destroys all religious liberty. So what he’s saying here is if you let the government, intrude into the area of discussion, debate, preaching, the discussion of ideas, even if you, we all agree that, the ideas we’re addressing with this government action are bad or they have bad outcomes. He’s saying, that’s a bad fallacy. That’s a faulty logic to think that it’s a good idea to allow the government to control our conversations and our words. And he says, by doing, if we did so, we would destroy all religious liberty. And by that he means, you know, it wouldn’t be right away. Right? Like me saying, hey, I don’t like you preaching that, we should all, take up arms and blow up this building over here because your God doesn’t like it. That may encourage people to do it. I’m not saying do it right now so it doesn’t fall into the imminent, threat doctrine that’s developed a century later. But I am preaching something that if we followed, it would be bad. And he’s saying, yeah, that sounds like it’s easy pickings. Let’s outlaw that. But what he’s saying here is if you do that, then the next administration that comes along that doesn’t like the preaching of the hare Krishnas is going to ban that. And the next one that comes along that doesn’t like Judaism, they’re going to ban that. Next one comes along and says, wait a second, Christianity’s got a lot of bad stuff in it. You’re not allowed to preach that anymore. And only Islam can be preached or only Christianity can preach. That’s where he’s saying is going. As soon as you allow the government to intrude, you have done away with religious liberty, because the winds of preference and philosophy will change over time. And sooner or later, you’re going to give the Banhammer to anybody in power like we’ve seen with Donald Trump, or imagine Marjorie Taylor Greene with it, and they would just outlaw anything that they didn’t like. So then he goes on to say in his conclusion here, it is time enough for the rightful purposes of civil government, for its officers to interfere where principles break out into overt acts against peace and good order. And what he’s saying here, and the Supreme Court in Reynolds is, is purposefully talking about these two sentences here. he’s saying it’s time enough for the rightful purposes of civil government. It is. You can wait for the government officials, for its officers to intervene when principles break out into overt acts against peace and good order, you can wait for government officials to start interfering with things when people’s ideas and conversation change and become acts actions. So what Jefferson is saying is, we don’t want that. In short, the government should not be able to regulate speech and thought specifically and more generally anywhere but specifically with religion. But they can and should. and it’s a good idea to wait until any sort of principles or discussion breaks out into an action. As soon as somebody breaks the law, arrest them. And this, the Supreme Court in the Reynolds case, the bigamy case, says, quote, in these two sentences is found the true distinction between what properly belongs to the church and what to the state. And they go on to explain exactly what I said. You can think that bigamy is fine. Polygamy is fine. You can rally your followers to say, hey, you know what? I think polygamy should be legal in Utah. You can say, I think we should be able to marry, anybody we want. Marry our mothers, marry our sisters, marry people that are already married, whatever it may be. You can tell people to go vote to elect officials who will change the law to make bigamy illegal. That is fine. That’s desirable. That’s what Jefferson wants. But the minute you commit bigany while it’s illegal, Jefferson saying that’s when you commit an overt act against peace and order. And peace and order is following the laws of the. Of the country. So the Supreme Court here in this first case, Reynolds v. us in 1878, let’s do the math. How long ago was that? That’s 22.

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The Cross Examiner/Graham: And we’re in 24. So 46, 146 years ago, we. We have our first case where we’re saying, all right, government gets to regulate acts and stay, out of anything else. Do not get into the discussion of religion. So that’s. That’s the first case. Now we jump way forward. And the reason I read that to you is we need to understand how long ago it was that we’ve sort of settled that principle where the Supreme Court said the state can regulate acts. The state shouldn’t get into the promulgation of religion. The discussion of religion, the repression of religion. They shouldn’t be get into the repression, promulgation, or, encouraging of speech about religion. So we jump all the way to 1963, and we get a case called Abington school district versus Shemp. This was in Pennsylvania. And back then, the Pennsylvania law required schools, public schools, to start the day by reading Bible verses. And this law had been on the book since 1949. Somebody sues. And this is the law, the quote of the law. This is a, 24 pa statute, which Pennsylvania statute, section 15 1516, enacted in or as amended in, 1959, requires that quote at least ten verses from the Holy Bible shall be read without comment at the opening of each public school. On each school day, any child shall be excused from such Bible reading or attending such Bible reading upon the written request of his parent or guardian. So they knew, you know, this is not constitutional. Let’s let kids opt out. This goes to the supreme Court. And they find that the trial court found that every school day at Abington senior High School between between 815 and 830, while pupils were attending their homeroom, the, opening exercises, the reading of at least ten bible verses, and it turns out the Lord’s prayer as well, is what they were doing, were broadcast into every single room in the school building, often with students reading the verses. And they were conducted. The reading was conducted under supervision of a teacher. Selected students from the course would gather in, the workshop studio to read over the loudspeaker. And then every student in the school was told to stand at attention and recite the Lord’s prayer. And this was, again, also broadcast over the intercom. But students were told, you need to join us in reciting this. So this is government mandated speech. This is the worst violation of first amendment. Not only am I. Am I saying I’m promoting Christianity here, but I am compelling students through peer pressure and, through unawareness of their parents. You need to start reciting this mantra every single day. And they tried to make it so it would be like, hey, you can opt out if you want to, right? You can go stand in the corner by your. While the rest of your classmates are doing this, chant, so to speak this prayer. You can be the weird kid if you want to. We saw how that plays out in all sorts of equal protection cases, right. In brown versus board of education, was, very short opinion. You don’t treat these students differently based on these certain things that are unconstitutional to use to differentiate students. That’s what they were doing here. so. And this was not the only state. By the sixties, four, more states were doing this. So shemp, who had a student, I don’t know if it was a son or a daughter. but he was a unitarian universalist. He was actually religious. He was a Christian, but he sued. And this is important because, this is going to be relevant to our Louisiana case when we analyze it. And the court held that public schools cannot sponsor bible reading readings and recitations of the Lord’s Prayer under the first Amendment’s establishment clause. It’s establishing a religion reading the part of this historical document that they will call it, the Bible is a, violation of the first amendment. So this is as far back when was, Abingdon, 1963. So you can’t read bible passages. You can’t make people recite the lord’s prayer. You can’t recite the lord’s prayer in school. Then we go to probably the second most important case. I would say it’s the most important because, it created a big test. But that test has gone away. So you may have heard of the lemon test. It comes from a case called

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The Cross Examiner/Graham: Lemon v. Kurtzman in 1971. So the facts under Lemon v. Kurtzman are Pennsylvania and Rhode island had statutes that provided, non public elementary and secondary schools with benefits. They paid all or some of teachers salaries. They paid for textbooks. They paid for instructional materials, all of this stuff. And it was for, non public schools, which is code for religious schools. So money was going to religious schools. They were taxing their citizens and giving their citizens money to schools that promoted a specific version of a specific religion. Right. the question the court had to ask was, hey, is this constitutional? And, chief justice, Berger, in a unanimous opinion, was eight oh, as to Pennsylvania and eight to one. And there was a technical reason somebody dissented to the Rhode island one, said, no, this is not constitutional. This violates the establishment clause easily. And in doing so, they created, they basically are saying, hey, we’re getting more of these. We need to. We need to guidance to the lawyers working for school districts. We need to give guidance to the lower court. We need to guide the country as to how to tell when government action violates or likely violates the establishment clause. And they produced what’s called now the lemon test. And it was a three pronged test. It was a sniff test. You go through it, one, two, three, you know, do you pass this? If so, go to two. Do you pass that? If you go to, then go to three. If you pass that, fine, you’re constitutional. The first was the purpose. Prong the statute must have a secular legislative purpose. Make that. Make that clear again. Whatever the government’s doing must have a secular purpose. So here they’re saying, you’re paying money to religious schools. There’s no secular purpose there. You are giving money to christian schools. They are going to promote Christianity. the states tried to argue, hey, we’re paying for the secular textbooks and we’re only paying teachers salaries. And they don’t always teach religion. They teach other stuff. Sometimes the court called bullshit on that and said, no, you can’t pay for public schools. So then we have. Which means you don’t even get to the second and third prong. Right? in that analysis. But the second prong was the effect prong. The principal or primary effect of the statute. Must neither advance nor inhibit religion. So, first you must have a secular purpose. You must be able to at least articulate and pass the snicker test. Like, if you tell me what your secular purpose is. And you’re not laughed out of the room as it being a lie or transparently a, facade, then you get to the effect prong. And the effect prong says, okay, it’s got a secular purpose, or a claimed secular purpose. What’s the actual primary effect of this? Because even if your secular purpose is to teach history, but the primary effect is to promote Christianity, you fail under the lemon test. Because the effect is to advance religion. Or if they do something that inhibits religion, they would fail there. Like, if you have a secular purpose to talk about, the history of how certain religious leaders of, let’s say, islam, have, done horrible things. And how their book is false. And how people shouldn’t pray to Allah, those sorts of things. You might be able to couch it as a history lesson. So maybe you get past the purpose prong. But you fail at the effect prong. Because you’re obviously trying to inhibit a specific religion from being practiced. So if you do have a secular purpose, and if the primary effect is neither advancing nor inhibiting religion, you get to the third prong, which is the entanglement prong. And the entanglement prong said the statute, the government action must not result in a, quote, excessive government entanglement with religion. What the hell does that mean? Right? Like, this is this is where the criticism really piled up by conservatives on this. Like, what do you mean, excessive entanglement? We’ve already said there’s a secular purpose. We’ve already said if we were at this stage, we know there’s a secular purpose. We know that the statute neither has a. Has a primary purpose that neither advances nor inhibits religion. What’s this entanglement? And there’s cases that get into that. I won’t get into it, because the cases that we review don’t even get to the entanglement prong. So that’s the lemon test. 19, 71. So I’m glad you stuck with me so far. Quick recap. Bill, of rights, 1791. Reynolds v. United States. Just remember, bigamy case. Bigamy case, 1873. Okay, that’s the one where they

00:40:00

The Cross Examiner/Graham: say. They quote Jefferson. This is the one that you can throw at Aunt Bertha. Hey, your favorite founding father, the one that. That said, the tree of liberty must be occasionally watered with the blood of tyrants. You know that the quote that the conservatives love putting on their t shirts? The quote that Timothy McVeigh had on his t shirt when he blew up the federal building in Oklahoma and killed kids, that immediately sold out as soon as he went on tv in that t shirt, that conservatives bought it up because they liked the idea of this guy blowing up government buildings and killing kids. that guy, Thomas Jefferson, is reacting to the idea of putting christian teachers in schools. Vehemently opposed to it. Madison, another conservative icon of the founding fathers, vehemently opposed. They write letters, they defeat the bill, and they pass their own bill establishing religious freedom. And they clearly say the government can regulate behavior all at once. It just can’t regulate thought, and it shouldn’t promote religion at all. So, bigamy case. says, yeah, you can say brighamy is good, but we can criminalize it. That’s 17. Excuse me. 1878. Then we go to Abington school district. This is, prayers being the holy bible being read over the loudspeaker in Pennsylvania. That’s 1963. Lemon test. This is paying for private school Christian schools, 1971, and creates the lemon test. So that’s 50, years old, right? in 1971. Over 50 years old by now. Then we get to the most on point opinion for this whole discussion, which is Stone v. Graham. That’s 1980. This was a Kentucky case. this is the case where Kentucky passes a law that’s almost identical to what Louisiana does. It mandates that the Ten Commandments must be posted in every classroom in every public school, and that Kentucky not pay for it. But you must accept donations. It’s a trick they’ve been trying to pull for. For decades here. This is 44 years old. 1980, Stone v. Graham. This is the case to remember. As far as being totally on point, the, The court found in this case, eight to one, an, overwhelming majority, that this was unconstitutional. It failed the lemon test at the first prong. And remember, to get past the first prong, you must be able to demonstrate that the statute has a secular legislative purpose, that you were doing this for non religious reasons and what the state did. And this is very important, they said in their bill. The reason we are mandating the display of the Ten Commandments throughout Kentucky is because the Ten Commandments are an important historical document. All of our laws are based from or stem from the law of Moses, the law that God gave us on the tablets. and that is why we are doing this. And they knew that they had to say that to try to get past the purpose prong, right? They. Lemon was. Was how old? At this .9 years old. They knew what they were doing. so they put this statement in there, and testimony was held at trial that that was the purpose, that that’s what the state claimed, the court wrote, and I’m going to quote them exactly here. Quote. This is not a case in which the Ten Commandments are integrated into the school curriculum, where the bible may be constitutionally used in an appropriate study of history, civilization, ethics, comparative religion, or the like. Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are, ah, to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey the Ten Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the establishment clause. I don’t know how much more clear you can get. This is an eight to one opinion from 1980 saying, you don’t get past the purpose prong. You are lying. Kentucky legislators, when you say the reason you are doing this is to teach history. You didn’t put it in history books. You didn’t introduce it into your curriculum. You posted it like rock posters, rock and roll posters all over the school without any other instruction. And there is

00:45:00

The Cross Examiner/Graham: only one result here, and that is to promote this particular religious text. So you don’t even get past the purpose. Wrong. We don’t believe you, that there’s a historical purpose. They also addressed the whole, hey, you don’t have to take money, to pay for these posters that Kentucky did and Louisiana is also doing in their bill. And they said, quote, it does not matter that the posted copies of the Ten Commandments are financed by voluntary private contributions for the mere posting of the copies under the auspices of the legislative. Excuse, me. The legislature provides the, quote, official support of the state government, quote, that the establishment clause prohibits citing other cases, saying, hey, you’re giving this the official support of the government. This is very similar to Brown versus Board of education, where the court unanimously said, even if you could draw a line and say that separate is equal, the mere drawing of the line by the government and saying it’s just a line is, a facade. The schoolchildren know why the line is being drawn, and it’s not because people dislike the white kids. It is obviously because they dislike the majority. The government dislikes the black kids, so that is impermissible. That’s what’s going on here. it’s a form of this. They’re to say it doesn’t matter, that it’s. We’re not paying for it. Right? That if it was just some poster we put up up, we didn’t have to pay for it. We’re just saying put it up. But it’s not an official government action. No, you mandating that the poster go up, even if you don’t pay for it, is putting this stamp of approval on Christianity, and that’s unconstitutional. That violates the establishment clause. That’s what the court says here. And then they call out the General assembly specifically, that passed this, the legislative body that passed it, quote, the preeminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. This is true even though the trial court found, quote, the General assembly thought the statute had a secular legislative purpose and specifically said so. So this is the. This is the Supreme Court’s very polite way of giving Kentucky’s legislature the bird. They are saying, I know you said that this was, a secular purpose, that this was a history lesson. And I know that you probably. I’ll give you the benefit of the doubt and say you think that, but you’re wrong. We know why you’re doing this. So they find it fails the first test there. There is no purpose other than a religious purpose of doing this. That should be the opening shut, right? That’s it. That we have clear precedent. It’s a hundred percent percent on point. There is no substantive difference between the Kentucky statute passed in, decided upon in 1980 and the bill that was signed yesterday by the governor of Louisiana. There’s no difference. So we should just be able to take them to court, point to Stone v. Graham, 1980, and say, no, you can’t do this. This is unconstitutional. See, Stone v. Graham, it’s a two sentence opinion. I mean, it’s. It should be that easy, right? Well, no, there’s. There’s two reasons that make it problematic. One, we’ve already talked about. The court has changed. We have a super majority of christian nationalist judges on this court that might hold differently. But more importantly, the test that was used in Graham, the Lemon test, which has been around for a half a century, was abandoned by this extreme christian nationalist court two years ago. You heard me say in the introduction that before 2022, I would have thought that this was easy. Before 2022, it’s literally Louisiana passes this, the ACLU sues. Tomorrow. They go into court, and the judge says, yeah, unconstitutional. See, Stone v. Graham, get out of my court. And then they appeal, and the circuit court unanimously says, stone, v. Graham, get out of my court. And then they appeal to the supreme Court, and the supreme Court doesn’t even take the case. That’s how it should go. Pre 2022. Post 2022. Now that this court has abandoned the lemon test, it’s the wild west. We have no idea what’s going to happen. Actually, that’s not true. I have an idea of what’s going to happen, and that’s what we’re going to talk about next. So, to know what was going to happen next, we need to revisit Stone v. Graham. But look at the dissent. I told you with an eight to one opinion, the chief justice of the court dissented. That was William Rehnquist. If you’re not familiar with Rehnquist,

00:50:00

The Cross Examiner/Graham: he is a very conservative judge. He is a textualist and originalist. He, he’s one of those people that doesn’t think that the document should change over time as our world changes, right? That, if in order, you know, I, the judge, I’m going to interpret these words the way they were meant the moment that the Congress put them into play. And if the world m changes, to make that a ridiculous result later on, I don’t care. The principles of democracy say, I’m supposed to tell. Well, I’m supposed to interpret what the legislative body meant when they wrote these words, and I don’t think they intended for their meaning to change. If you want to fix that, update the constitution all the time. Update the laws all the time, which is impractical. We know, it’s just impractical. Our government is designed to be a. So that’s Rehnquist. Rehnquist says he thinks that it should at least pass the purpose prong, and probably every prong, the. The Kentucky Ten commandment statute. So this is what he says. he argued that the commandments, quote, had a significant impact on the development of secular legal codes of the western world. His dissent contended that, quote, since religion has. I’m sorry. His dissent contended that since religion has, quote, been closely identified with our history and government, one can hardly respect the system of education that would leave the student wholly ignorant of the currents of religious thought. So what he’s saying here is, wait a second. You, the majority are saying that posting the Ten Commandments has no secular purpose whatsoever. But I find, and I think people will agree, says Rehnquist, that the Ten Commandments has had a significant impact on the development of secular legal codes in the western world. Basically, western law comes from or is greatly influenced by the Ten Commandments. I’m going to call that a little bit of bullshit, and it gets to be a big bullshit later, but remember that that’s his thing. He’s basically. And then he goes on to say, one can hardly respect the system of education that would leave a student wholly ignorant of the currents of religious thoughts. In other words, a school that doesn’t teach kids about the history of religious thought is a bad school. You’re not doing your job. Not only should you, should you, Not only is this important, it’s so important that if you don’t teach it, it would be bad. And then he says the court rejects the secular purpose articulated by the state because the decalogue, that’s the Ten Commandments, is, quote, undeniably a sacred text. Then he says, it is equally undeniable, however, as the elected representative of, Kentucky determined that the Ten Commandments have had a significant impact on the development of secular legal codes. That’s where he came that from. The trial court concluded that evidence submitted substantiated this determination. Certainly, the state was permitted to conclude that a document with such secular significance should be placed before its students with an appropriate statement of the document’s secular importance. The establishment clause does not require that the public sector be insulated from all things which may have a religious significance or origin. This court has recognized that, quote, religion has been closely identified with our history and government. And, quote, the history of man is inseparable from the history of religion. And he’s not wrong on some of these points. He’s not wrong that the history of man is inseparable from religion. He is not wrong that religion has been closely identified with our history and government. There’s a lot of there. But then he goes on to say this, quote, Kentucky has decided to make students aware of this fact by demonstrating the secular impact of the Ten Commandments. And I have written in my notes, in all caps, bullshit. And this is with a big bullshit. Okay, so he’s sitting here talking. At first, the history of law stems from, at least in the western world, stems from the Ten Commandments. That religion has been closely identified with our history and government, that schools who don’t talk about the subtleties of how religion interface, excuse me. Affects our history. Would be a bad school system that, quote, the history of man is inseparable from the history of religion. He says all of that, and then he has the balls to say, Kentucky has decided to make students aware of this fact by demonstrating the secular impact of the Ten Commandments. How does posting the Ten Commandments on a wall in every classroom demonstrate the secular impact of the Ten Commandments? I ask you,

00:55:00

The Cross Examiner/Graham: in what world does that follow from everything that you just said? Even if we accept that this is important, which I tend to agree, the Ten Commandments were important to a lot of people. But I will also argue later that they’re not unique and they weren’t the first. They aren’t the original source. we find laws. I guess I’m arguing now. We find laws, sumerian laws, dating to five to 800 years before our earliest estimates of when the Ten Commandments were written. And the fact that we don’t know when the Ten Commandments are written should tell us something about religious belief, but that’s not this episode. So, 500 to 800 years before the Ten Commandments, we have laws, written in sumerian that we have found written laws that say things like, don’t kill people. If you kill a man, you are going to be put to death. Don’t steal. If you steal, you’re going to be put to death. Don’t kidnap. If you kidnap people, you’re going to be put to death. don’t rape a woman. That that’s somebody else’s property. If you rape somebody, you’re going to be put to death. No, I’m just kidding. They don’t say that. They say if you rape somebody, you’re going to owe the owner of the woman 15 shekels, just like the Bible does. I just need to. Need everybody to wrap their head around. They said, it’s another fight for another day. But kill somebody, get put to death. Steal, get put to death. But rape a woman, you owe somebody 15 shekels. But these are all mirrored in the Bible. so there’s a very famous quote by Robert Ingersoll, who was a famous atheist. He described himself as agnostic, attorney back in the 18 hundreds. And he talks about the Ten Commandments and this claim, this claim of Rehnquists and others, the Louisiana state legislature, the Kentucky legislature, and certainly the people that are going to be talking to the Supreme Court about this case, that this is the origin of our laws, that it’s the most important thing for our laws. I’m going to read this quote now. It’s one of my favorite pieces of writing. and I’d like for you to listen to this and keep it in mind. This is what should be ringing true when you hear the argument that we’re doing this for secular reasons, we’re doing this for historical reasons. This is Robert Ingersoll. Some christian lawyers, some eminent judges have said that the ten Commandments are the foundation of all law. Nothing could be more absurd. Long before these commandments were given, there were codes of law in India and Egypt, laws against murder, perjury, larceny, adultery and fraud. Such laws are as old as human society, as old as the love of life, as old as industry, as the idea of prosperity, as old as human love. All of the ten Commandments that are good were old. All that are new are foolish. If Jehovah had been civilized, he would have left out the commandment about keeping the Sabbath. And in its place he would have said, thou shalt not enslave thy fellow men. He would have left out the one about graven images, and in its stead would have said, thou shall not wage wars of extermination, and thou shalt not unsheathe the sword except in self defense. If Jehovah had been civilized, how much grander the ten Commandments would have been. All that we call progress. The enfranchisement of man, of labor, the substitution of imprisonment for death, of fine for imprisonment, the destruction of polygamy, the establishment of free speech, of the rights of conscious, in short, all that has tended to the development and civilization of man, all the results of investigation, observation, experience and free thought, all that man has accomplished for the benefit of man since the close of the dark ages has been done in spite of the Old Testament. So, what he’s saying here is this claim that this is the source of our law, or should be considered the source of our law is utter bullshit. That not only were there written laws in India and Egypt, but, as I say, we’ve found laws that he wasn’t even unaware of that predate the, ten commandments by, 800 years. Five to 800 years. At least. At least that long that say the same things. And his argument under his argument is saying this is a secular thing. Living beings in a social society will come up with

01:00:00

The Cross Examiner/Graham: the same laws. You don’t need the Ten Commandments. I will learn pretty quickly. That’s a bad idea, for people to go around killing each other and raping each other and and lying and stealing all of these things we don’t like. And so we get together and make laws to outlaw them as we did long before the Ten Commandments. Was. Was Christianity as a whole important to people? Yeah, it sure as hell was. Either because they liked it or because it was brought upon them through crusade and threat of death. But it became important, and that’s important to discuss that whole thing. But that’s for a history class. Posting the Ten Commandments on the wall is the stupidest way I can think of, of trying to have that discussion. And that is what the Supreme Court said in Stone v. Graham. So what happened? Why am I worried? Why. Why is everybody talking about this? Worried? Well, we have to talk about one more case, and that’s Kennedy versus Bremerton School District from 2022. This is that, that time I was telling you about. So what was Kennedy? Kennedy was, if you remember this, this is a recent case. The football coach who had taken to the practice of praying in the middle of the field after each game, and players would join him. And the school started investigating what he was doing with his prayers because they were worried that it would constitute a violation of the establishment clause. He is a government official that Jefferson wrote about back in his letter, objecting to hiring teachers of the christian faith, right? Objecting to what he is doing. He is becoming a teacher of the christian faith. He is a teacher in the school. He is getting his players to pray with him. And you can be damn sure it was a christian prayer. I, mean, we know it’s a christian prayer. There’s no doubt about that. So. So the school started asking what was going on, and I’m going to read a few facts so we understand what was going on here. So he had taken to the practice of praying in the middle of the field. Immediately after each game, the players and others would join into that practice. After a while, like they noticed. And after a few games, more and more players were just praying with him in the middle of the field. As soon as the game ended, the school board, told him, hey, we’re worried about this establishment clause. But he kept doing it. they told him, hey, you can pray elsewhere or at a different time. But he continued the practice. And, then, Kennedy, found out that he had been leading prayers in the locker room. This was not just him prying, praying by himself. This was him praying with a bunch of kids on the field and praying with a bunch of kids in the locker room. He was being a teacher of the christian faith through example, if not through deeds. and, the court, which is now the McConnell court, the court that McConnell used dirty politics to create, held that the school board fired him because he refused to stop. And they said, well, because this violates the establishment clause, you can’t do it. He refused to stop, and he said, we got to let you go. The school. The court, in a six, to three, I was believe. Yeah, six to three opinions, and said, nope, that violates his free exercise clause. And this is why we had to talk about what we had to talk about. Reynolds v. Us. right. This was the bigamy case in which the Court, the Supreme Court, same court, went to. That went to all that discussion about the Jefferson sentences that says the two sentences find the true distinction between what properly belongs to the church and what properly belongs to the state. So you’re my students. What do you remember about Reynolds? What did they talk about? What does Jefferson say is the property is properly belongs to the state and to the church. The church gets speech and thought right. The state gets to regulate actions. And this guy can be christian, he can profess Christianity all he wants, but the action of doing it at school as a government official is wrong. It violates the constitution, as this is the claim. And, that is why we can regulate it. And that’s the tension that this court brought back out of nowhere. And you might say, well, wait a second. Why are they not going through this three pronged lemon test? What, is there a secular purpose for praying at a school football match? It. No. If Lemon was in play, it would have failed on day one. Like prong, one instant one. But the court didn’t use the lemon test. The court had been. This conservative court didn’t like the lemon test from the minute it got put into place by the Supreme Court 50 something years ago. And they’ve

01:05:00

The Cross Examiner/Graham: been looking for a way to get rid of it, because that first. They don’t like that first prong. Oh, we have to have a secular purpose when we try to indoctrinate and groom our kids in public schools to be christians. I don’t like that. Let’s get rid of lemon. And that’s what Gorsuch did. So Gorsuch is the. Is the judge that wrote the opinion. And they held, and he held that the gut. And they held, the six held, that the government, while following the establishment M clause, may not suppress an individual from engaging in personal religious observance as doing so would violate the free speech and free exercise clause of the first amendment. So a few things we need to go over about why this is such a bad case. First it got rid of lemon, and that’s the real problem for us. But it is also, the first case I’ve read. I’m sure there’s others where I see Gorsuch just lying in writing in front of the whole nation. He is lying when he recites the facts of this case. Gorsuch, if you’ve read a court, opinion, there will usually be, you’ll get the case of so and so versus so and so. Here are all the lawyers. Here were the judges. This is the date. Here’s how it’s going to be reported. And then you’ll get sort of a recitation of facts. If the judges are writing their opinions correctly, they will say on this date and this time, this person did this. and these are all facts that should have come from trial. That’s where facts get established. You don’t bring facts in as a supreme court justice. You go back to trial and you say, the facts of this case, as were found at trial, were the following. And what Gorsuch said was that Kennedy offered his prayers quietly while his students were otherwise occupied, and that he made short, private, personal prayers. He also said that there is no indication in the record that anyone expressed any concerns to the district about the quiet, post game prayers that Mister Kennedy asked to continue, and that led to his suspension. So he’s saying that these were short, private, personal prayers just for him. Gorsuch said, he distinguished this case. Storage, said, this case is different from cases, quote, in which this court has found prayer involving public schools to be problematically coercive. They’re talking about, which case here we’re talking about, Abington, where they’re reading prayers over the loudspeakers in schools, right? That’s what they’re saying is, well, this is different than that. This is not something that’s being broadcast to all students, which is true. I’ll give him that one. he reasoned that unlike these earlier cases, Kennedy’s prayers were, quote, not publicly broadcast or recited to a captive audience, and students were, quote, not required or expected to participate. So the main points that Gorsuch is making here is this was a short, private, personal prayer. Those are the words he used. And that this was not publicly broadcast and it was not recited to a captive audience. And they were, students were not required or expected to participate. I hope you see the bullshit that they’re laying on here. So this is even not knowing the facts. You know how schools work, you know how teenagers work, right? Saying this was not a captive audience and that the students were not required or expected to participate. Right? That’s what they’re saying. I see, as a teenage boy that’s trying to make varsity football, I see my coach and a lot of my teammates out in the middle of the field praying after. After class, after, excuse me, after the game. You can bet my. Your ass that I’m going to be out there praying, even if I’m not christian. I am going to be doing that because I want a spot on the team. I don’t want my teammates to ask me, why aren’t you praying? This is coercive, just the act of doing it and saying, if you don’t like it, you can go sit on the bench or you can walk away. We’re right back at equal protection again, right? We’re right back in the lap of brown, versus board of education. You, a government official, are drawing a line between people who are participating in your sectarian prayer, your christian prayer to Jesus, and the students who do not participate. And we know what the effect is going to be. So Gorsuch is full of shit here. He also said that it was small. What was the exact, quote? Short, private and personal prayers. And you have to. I’m going to put the pictures up in the video, if I can find it, of what happened at these things. These were not short, private, personal prayers. Sotomayor wrote the dissent, and I’m going to go through her dissent, because we need to understand what’s going on here so we can know what’s going to happen with the Louisiana case. But one of the things she did that I think is very, telling

01:10:00

The Cross Examiner/Graham: is she did something I’ve never seen a supreme Court justice do. I know they’ve done it on a handful of occasions, but I’ve not read a case where this has happened. She included photographs in her written opinion. If you’ve ever read a, read a judicial opinion, it’s just walls of text and citations and footnotes. That’s it. She put pictures in three different pictures because she wanted to call Gorsuch’s lies, and she wanted it on the record. In her opinion, she put pictures in of giant crowds of students and parents surrounding the coach when he is praying in the middle of the field, people taking pictures. She puts numbered circles on some of the participants to identify who they were, and it discusses them in her opinion. So please go to my. My site, thecrossexaminer.net, and take a look at these pictures. since I’m doing this as a video, I’m probably gonna edit this and put the pictures up while I’m talking right now so you can see them here. it’s ridiculous to even claim that this was a small, quiet, personal, just for me prayer. He is surrounded by, like, 50 students in one of these things. I have to describe this, by the way, because I have both a podcast of this and a video of this, a YouTube of this, something that came out that she also pointed out. well, I’m going to go through it. Let’s go through what she said. Sotomayor says Mister Corsic described this as, quote, Mister Kennedy prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters. He offered his prayers quietly while his students were otherwise occupied. Sotomayor said the record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50 yard line of the football field. Kennedy consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location. He did this in the locker room. M too. That, she points out, the court ignores this history. Gorsuch never mentions any of this. The court also ignores the severe disruption to school events caused by his conduct. She also described the implicit coercion that I talked about from peer pressure. She said, quote, to the degree the court portrays petitioner Joseph Kennedy’s prayers as private and quiet, it misconstrues the facts. She wrote that the court has consistently recognized that school officials leading prayer is constitutionally impermissible. The majority ruling, she wrote, quote, charts a different path, yet again paying almost exclusive attention to the free exercise clause, protection for individual religious exercise, while giving short shrift to the establishment clauses, prohibition on the state establishment of religion. And that’s the core here. Again, it goes back to, to our earlier case where we reviewed what Thomas Jefferson said about this tension between free exercise and, establishment. This is the Reynolds case from 1878, right? She, has got hints of that here. In fact, one other fact I forgot to even note, this is the one that I think really sort of blows the whole Gorsuch argument. This is a quiet, private prayer off on the side of events while students were free to go do whatever they wanted. She says it’s in the record. In the trial in September 2015, quote, a court, a, coach, excuse me, from another school’s football team, informed Kennedy’s principal that Kennedy had asked him and his team to join Kennedy in prayer. The other team’s coach told the principal that he thought it was, quote, cool that the district would, quote, allow its coaches to go ahead and invite the other team’s coaches and players to pray after a game. So this, this utterly destroys what Gorsuch was saying, and it’s there for the public to read. And I’m surprised that people aren’t alarmed by this. I mean, people were, but this is just pure bullshittery on the, on the side of Gorsuch. This, he portrays it, in his opinion, as this quiet, personal, short, private prayer. And we see facts in the record established at, trial. And you can’t ignore this. These are facts at, ah, trial that. That they found he was inviting other teams ahead of games to say, hey, come pray with me. Bring your whole team. We’re going to make a big demonstration out of this. He would hold his helmet up in the middle of the field before the prayer. that’s in the record, too. So, go take a look at the pictures. one of the things she points out, and this is the important part, is, hey, Gorsuch didn’t use lemon. Lemon, is dead. We didn’t officially say lemon is bad law, but sotomayor, in her dissent, says lemon is dead. The court’s never going to use it again, which now means it’s bad law. Which basically means if you ever go to a court

01:15:00

The Cross Examiner/Graham: and argue a first amendment case, and you start by saying the lemon test says, blah, blah, blah, blah, you’re going to be laughed out of the courtroom because lemon no longer applies. Because justice sotomayor properly, I called out this court, for ignoring it. And, they had ignored it in other cases previously. So what does that mean for the Louisiana case? Where do we stand? That’s been a very long episode. I appreciate you staying with me. So Lemon is out because of this, Bremerton school district, the Kennedy, the coach case, they’re not going to use lemon. So before 2022, before Bremerton, we would have said, okay, Stone v. Graham says the exact fact pattern we have in Louisiana, we had in Stone v. Graham, in Kentucky, the displaying, the posting of the Ten Commandments in every classroom doesn’t get past prong one. There is no secular purpose to this. So you’re gone. That’s what would have happened. But now we don’t have that. Lemon is dead. That three prong test is dead. So what is the court going to do with this? We don’t know. And that’s the scary part. Right. I believe what will happen will be the trial court should say Stone v. Graham is still good law. They haven’t said lemon’s bad law. They haven’t said Stone v. Graham is bad law. Sotomayor has said lemon’s dead. We’re not going to use it again. So they should say, this is exactly the same as, Stone v. Graham. Case closed. Leave that. That should be the end of the story. Then Louisiana will appeal, and they’ll go to whatever district. I don’t know. Excuse me. Whatever circuit, Louisiana’s in, I didn’t look that up yet. and that should be a unanimous opinion by all the judges that say Stone v. Graham applies. This, Bill, excuse me, this act is unconstitutional, and then Louisiana is going to appeal to the supreme court. What should happen is the supreme court should just refuse to hear the case and leave the circuit court’s opinion in place. We don’t know what’s going to happen. I would not be surprised at all if this court, accepts the case. And if they do, there’s two things that could happen. They could accept it because they want to create a new lemon test. Lemon point, you know, 2.0, because they still want to reject it, but they want a different test to use and some sort of vague balancing act. But this court, as Sotomayor says, is all about free exercise and doesn’t give a shit about the establishment clause. So I think even under that sort of, if we say this court’s all about free exercise, I still. There’s a still a chance this court says, yeah, this is still fails, because who’s exercising free religion here? I don’t think they passed the sniff test on the history thing, but that’s going to be the argument. Louisiana is going to argue all along. The Rehnquist dissent in, Stone v. Graham. They’re going to say, this is historical. This is why we’re doing it. It’s got a secular purpose. And the lawyers for, freedom from Religion foundation and ACLU should be arguing as part of their response, should be saying, that’s bullshit. And here’s why. You know, there’s lots of different ways to phrase that. You could say, the way you’re doing it is not an. Is not in a standard way of instruction. You’re just putting a thing on a wall and not talking about it. You’re making sure by the law that it’s large enough for everybody in the classroom to read, read. It’s not incorporated into your lesson plans. This is not instruction. This is indoctrination. This, when you want to talk about grooming in schools, this is grooming people to be christians. That’s what. That’s the argument here. This is not a teaching of history. And then the other argument prong to make on that is, even if it were teaching history, this is not proper history. That is a pretext, because when you look at the history of our laws, they predate the Ten Commandments by five to 800 years. And there’s lots of other laws. As Ingersoll said, Egypt and India, and everybody has always come up with, don’t murder, don’t kill, don’t rape, don’t lie, don’t do all these things that a societal species doesn’t like. There’s nothing new in the Ten Commandments. Anything that is new is foolish, as he said. So that’s the other argument to make. Make. A couple of other arguments that they should make are 14th. Ah, amendment case. They don’t do this enough. This is, again, brown versus board of education. 14th amendment is equal protection. That’s how. That’s what brown versus board of

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The Cross Examiner/Graham: Education was decided upon. They should be making that argument. There is a, law review article by a professor entitled thou shalt use the 14th amendment more. And her point is, hey, everybody that’s fighting these First Amendment cases always relies on the First Amendment, always relies on establishment and free exercise. But mostly establishment right. They don’t want the government to do this. But there’s another argument to be had, and it’s true with the prayer case, and it should have been brought up in Bremerton, and it’s true now, even if everything fails, even if the court says no, this is historical, et cetera, et cetera, you have to say, well, why aren’t you including jewish texts? Well, this is kind of jewish, right? Why aren’t you including islamic texts? Why aren’t you including secular, texts? Why are you not putting the Bill of rights right next to this and all of that sort of stuff to say you are singling out Christianity as being special when we’ve demonstrated it’s not that special in the way that you want it to be, historically speaking. And you’re not including any other religious texts, and you’re not promoting any sort of secular stuff. So you are creating the same situation we had in brown, versus board of education. You’re saying, anybody who’s not Christian is worth less than those who are christian. And that is the message you get from the first day you learn to read in kindergarten when it says, I am the Lord thy God, and big, bold letters on the walls. That’s the equal protection argument that should be made. I don’t know what the court’s going to do. I really don’t. I could see this court shooting this down. I could see the court rejecting it not, and refusing to hear it and just saying, graham’s m still good law. Graham Stone v. Graham. but I could also see them taking it and then coming up with sort of a new test or rule, a balancing act or whatever they’re going to do. They always use sniff tests and balancing acts and a, logic gate, like the lemon test, like, first check this, then check that, that sort of thing. and then still rejecting the laws unconstitutional. But I could also see them finding this constitutional. And the only way they would do that, I think, would be to say that even though lemon’s dead, those elements are still going to be discussed. This is a purely secular bill, or this is a purely religious bill, and there’s excessive entanglement, and all of those things will still come up, but they just won’t be called the lemon test. This is why you should be donating, quite frankly, to the ACLU and the freedom from Religion foundation and Americans for the separation of church and state. There’s, there’s multiple organizations that have teamed up. I spoke with representatives from, I should say, I traded emails with representatives of FFRF, freedom from Religion foundation, weeks ago when this bill was passed. And I said, whoa, this is a big one, right? And they said, yeah. Yep. We are partnering already with ACLU, Americans, for separation, church and state, and all these other sister organizations. We have a team together, and we are going to sue the minute that the governor signs us into bill. I offered to do an interview with them. I’m like, hey, we got to talk about this. And they said, let’s wait till it actually gets signed. So hopefully in the next week or two, we can get somebody on to give, to correct any errors I’ve made in this podcast, and talk about what they think is going to happen in this court. But you should be funding them. Go to FFrF, uh.org, comma, go to ACLU and give them $5, $10, because as I’ve described before, there is a wall that separates religion from government. That’s what Jefferson created long, long ago, writing about these issues. That’s what the first amendment creates. That’s what the case law. If you spent this hour and a half, 2 hours, how long has it been reading to you to try to understand that’s what we’re protecting and the people from FFRF and the related organizations are the soldiers that stand guard on top of that wall. They stand watch looking for this sort of bullshit because, this is, this is directly on point for the theme of my podcast. Christians, christian nationalists have wanted to, quote, put Jesus back in school for a long time. He was never in school. Jesus was never taken out of school. Kids can pray on their own. You can, you can have your own little christian club and in your school and meet together and pray every day, right? That’s not what we’re talking about. We’re talking about the government coming in and saying christianity is better than everything else. So they’ve wanted to do that for a long time because it’s just a thing. It’s just a thing that gets a mad, right? And the GOP knows that it gets a mad.

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The Cross Examiner/Graham: And if I can keep you mad, I can keep you voting for me because I’ll be mad with you. I’ll pretend to be mad. And now they’re doing this because they’ve played the long game. They played dirty baseball when Obama was in office. They loaded up this court when Trump was in office. And now we have this situation where there’s a real possibility that every school in the country could start posting the Ten Commandments because the court says it’s okay. That’s why you need to give money to these organizations, because they need to stomp this out the minute that it’s detected. So thank you very much for sticking with me. if you take anything away from this, just remember bigamy in 1878, the court makes it clear, cites Jefferson and tells the story of Jefferson fighting against this stuff before the bill of rights even existed. So as far back as 1878, bigamy. And that’s the Reynolds case. And then, if you care to remember, Abingdon, this is the Pennsylvania schools were reading the ten verses, the Bible verses, to their students in 63, fully unconstitutional. Lemonade, 1971, states paying for the activities of religious schools, clearly unconstitutional, and created the lemon test that stood for 50 plus years. Then we have Stone v. Graham, the one that’s on point. If you remember one case, 1980, Stone v. Graham, Kentucky did the same thing. Louisiana is doing, blatantly unconstitutional. With Rehnquist objecting, saying, I think that there is a secular purpose. And I think it’s that objection that’s going to carry forward. Even though Bremerton, the football coach thing, did away with Lemon, 50 years later, after Lemon was passed, did away with it and signaled that it’s, it’s. It’s open season on bringing these sorts of bills which is why Texas did this last year and why Louisiana is doing it now. And why, I think it’s Ohio, where they’re trying to create religious chartered schools, which is what violates the. The holding in, In, Lenin. Right, Violet? You know, we’re paying for a private, religious school. That’s what a charter school is. And then they have them. Now they’re trying to create them in Ohio, I believe it is. So those are the big ones. Stone v. Graham being the biggest, 1980. So get out there and fight. Do not give up because your vote matters. This is another thing I should say. Sorry, I keep acting like I’m ending this, but people will say, I don’t see a difference between Biden and Trump. This is Trump. This is what happened. I don’t care if you are a Republican most days. the MAGA movement is not the traditional republican movement. It is the white christian nationalist movement. And he is their fascist leader. And this is the prize that they got for supporting him. You wonder why all of these, allegedly good christian people would. Would vote for the pussy grabber in chief, the philanderer in chief, the porn star, hider in chief. This is why. Because he told them he would do this. He gave trillions of dollars to the richest Americans without giving any to the poorest. And he gave the religious fanatics that got him into power. He gave them this court, these judges who did Bremerton did away with lemon, and now are poised to let schools start teaching you not only that Christianity is the best religion and everybody else is second class citizens, but potentially, which version of Christianity is the best. And that’s really, really scary. That should be scary for anybody. Even Christians should be outraged that this is going on. All right, long rant over. I appreciate you sticking with me. This, I, think the amount of time I’m devoting into talking about this should signal how concerned I am about this. So please get out there and vote. Please get out there and donate. And I promise you, the stories I told you were coming up are coming up, but I had to get this in the can and talk to you about it. So thanks for paying attention, and I’ll see you next time. Bye bye. Thanks for listening to this episode of the cross examiner rocket docket. If you enjoyed this podcast, please consider liking and subscribing. We’ll see you soon.

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