Speaker 1: This is Bloomberg Law. A divided Supreme Court rejects a
Speaker 1: religious challenge, tell us a little about the facts of
Speaker 1: the case. Interviews with prominent attorneys in Bloomberg Legal experts
Speaker 1: I guess his former federal prosecutor Jimmy Grula joining me
Speaker 1: is Bloomberg Law reporter Jordan Ruben. And analysis of important
Speaker 1: legal issues, cases and headlines. The Supreme Court takes on
Speaker 1: state secrets. Multiple lawsuits were filed against the emergency rule.
Speaker 1: Is this lawsuit? For real? Bloomberg Law with June Grasso
Speaker 1: from Bloomberg Radio. Welcome to the Bloomberg Law Show. I'm
Speaker 1: Kimberly Robinson and I'm Vidio Wheeler. We're in for June Grasso.
Speaker 1: Coming up on the show. We're going to discuss the
Speaker 1: latest battle between first a meenment rights and anti discrimination
Speaker 1: laws to hit the U. S. Supreme Court. But first
Speaker 1: we're going to talk about how the public could soon
Speaker 1: see portions of the affidavit the FBI used to justify
Speaker 1: its search of former President Donald Trump's Mari Lago estate.
Speaker 1: A federal judge week gave the Justice Department a week
Speaker 1: to propose what parts of this highly sensitive document should
Speaker 1: be redacted. Media outlets pushed for the documents to be
Speaker 1: unsealed after the FBI rated Trump's Palm Beach, Florida home
Speaker 1: on August eight. The search was part of an investigation
Speaker 1: into whether President Trump took classified documents from the White
Speaker 1: House when he left office. Joining us as the Honorable
Speaker 1: Alberto Gonzalez, who served as the country's eightieth Attorney General
Speaker 1: during the George W. Bush administration. He's now dean of
Speaker 1: Belmont University College of Law. Honorable Gonzalez, can you explain
Speaker 1: what an affidavit is and what information it typically contains? Well?
Speaker 1: In this particular, an affidavit is a sworn statement by
Speaker 1: someone affirming the truthfulness of certain facts. In this particular
Speaker 1: case and a criminal prosecution, typically you provide an affidavit
Speaker 1: that lays out the information that supports finding a probable cause. Uh.
Speaker 1: That can be quite detailed, quite extensive, because of course
Speaker 1: you want to make the case, you want to meet
Speaker 1: the burden, the standard of probable calls and um. So
Speaker 1: that's what an affidavit typically would entail and include in
Speaker 1: connection with a with a criminal prosecution. So this dispute
Speaker 1: is all about, you know, whether or not the public
Speaker 1: is to see this affidavit, and I'm just wondering, what
Speaker 1: does that matter. We've already seen the surcharrant itself, and
Speaker 1: you know it includes a description of some of the
Speaker 1: items that were seized. What other information does the affidavit
Speaker 1: have that we don't already know about. Well, without seeing
Speaker 1: the affidavit, I'm going to be just speculating here. But
Speaker 1: for example, an affidavit might include the name the identity
Speaker 1: of a witness who provides information. Perhaps the affidavit would
Speaker 1: say on some and so day, we met with this
Speaker 1: individual and this individual provided this information, or so so date,
Speaker 1: this individual provided an email that included certain information that
Speaker 1: would form the basis of possibly evidence that crime has
Speaker 1: been committed. So it can be quite detailed, quite frankly,
Speaker 1: because you do want to meet the standard before the judge,
Speaker 1: and you want to persuade the judge that yes, there's
Speaker 1: enough here to conduct the search, because of course a
Speaker 1: very contrusive investigatory tool, and so the information can be
Speaker 1: quite detailed. And I think part of the concern here
Speaker 1: is that there are two concerns primarily for the prosecution. Generally,
Speaker 1: one is particularly if you have a witness that you
Speaker 1: don't want to have that identity is closed at this
Speaker 1: particular time, particularly there's a concern about safety or public harassment.
Speaker 1: You want to protect the identity of that witness, of course,
Speaker 1: and there are other reason you want to protect information
Speaker 1: that is enclosed in an affidavit is that it does
Speaker 1: provide somewhat of a roadmap, not a very I wouldn't
Speaker 1: say a definitive roadmap, but does provide a hint indication
Speaker 1: of how the prosecution is going to use information or
Speaker 1: evidence or what evidence it has gathered in connection with
Speaker 1: a roadmap to strategy about how to prosecute the crime.
Speaker 1: That's interesting the Justice Department set in one of the
Speaker 1: court filings that it actually wants to keep this affidate
Speaker 1: that sealed, you know, to protect the integrity of an
Speaker 1: ongoing law enforcement investigation. But can you explain for us
Speaker 1: how releasing it could harm the integrity of that investigation.
Speaker 1: I mean, I understand wanting to protect witnesses, but what
Speaker 1: is it about the integrity of the investigation that could
Speaker 1: be harmed. Well, it will provide more information about the
Speaker 1: specific charges and the evidence that the prostitution already has.
Speaker 1: And if you know what evidence and what potential witnesses
Speaker 1: may be called to testify. As a defense lawyer, you're
Speaker 1: better able to prepare for it. The other thing that
Speaker 1: there would be concerned about is, of course, is that
Speaker 1: your case may may hinge in large part upon upon
Speaker 1: the cooperation of a witness, and that witness may be
Speaker 1: discouraged from participating and cooperating if in fact, this identity
Speaker 1: that witnesses to publicize the witnesses or ass and the
Speaker 1: witnesses forget it. I'm not going to cooperate any in
Speaker 1: any way, and so it would force the government to
Speaker 1: try to compel the witness to testify to cooperate. Of course,
Speaker 1: that's never an ideal situation. So you really do want
Speaker 1: to work with and protect the identity of witnesses, There's
Speaker 1: no question about it. So you know, this dispute comes
Speaker 1: as media groups have asked for the judge to make
Speaker 1: the affidavit here public. I'm just wondering, you know, how
Speaker 1: common is it for the press to try to intervene
Speaker 1: in cases like this. Well, no, it's unusual because we
Speaker 1: have an unprecedented search, we have an unprecedented set of
Speaker 1: circumstances here, and so typically the press would not weigh in.
Speaker 1: I think the press would generally is more understanding of
Speaker 1: the fact that they don't want to do anything or
Speaker 1: they shouldn't want to do anything to put it that
Speaker 1: way that would compromise or hurt an investigation that would
Speaker 1: make it more difficult to prosecute wrongdoing, for example. And
Speaker 1: so I understand the great public interests in this uh
Speaker 1: And maybe perhaps this is a press feeling like you
Speaker 1: need to at least appear to want to have this
Speaker 1: information make public. But I have to believe that responsible
Speaker 1: journalists understand that it's important to keep certain information confidential
Speaker 1: as long as possible, if in the judgment of the prosecution,
Speaker 1: that's important to have a successful prosecution of actual criminal wrongdoing.
Speaker 1: You know, I think when the judge makes the comment
Speaker 1: or discloses that perhaps certain parts of this affidavit is
Speaker 1: going to be disclosed, I can't imagine that on a
Speaker 1: case this sensitive and it's important for the government because
Speaker 1: it is important. But it took a huge step in
Speaker 1: doing this search that the judge is going to allow
Speaker 1: any kind of meaningful disclosure of information in his affidavit,
Speaker 1: so that the press maybe you know, they're jumping up
Speaker 1: and down screaming for this information, and they're now look
Speaker 1: like they're going to get something. I think they're gonna
Speaker 1: be disappointed in what the judge actually allows to be
Speaker 1: released that is not redacted. Quite frankly, that's the honorable
Speaker 1: Alberto Gonzalez. You're listening to Bloomberg Law. Up next, we
Speaker 1: continue our conversation with the former U. S Attorney General.
Speaker 1: I'm Lidia Wheeler and I'm kimber Le Robinson. This is Bloomberg.
Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: I'm Lidia Wheeler and I'm Kimberly Robinson. We're in for
Speaker 1: June Grasso. We've been talking with the Honorable Alberto Gonzalez,
Speaker 1: who served as the country's eightieth Attorney General during the
Speaker 1: George W. Bush administration. Honorable Gonzalez Trump said publicly and
Speaker 1: that the judge should unseal the affidavit, but his attorney
Speaker 1: has never actually filed a motion to ask for the
Speaker 1: judge to do that. So why do you think that is?
Speaker 1: I have no idea why it is. You know, typically
Speaker 1: someone who has actually committed a crime, they want to
Speaker 1: get away with it. They don't want to disclose and
Speaker 1: so they would typically not want to disclose the fact
Speaker 1: that bet it Starts occurred, and if in fact it
Speaker 1: was Cromwell wrongdoing, you know, they may not want that
Speaker 1: disclose as well. In this particular case, I think former
Speaker 1: President Trump rather an orthodox in the way and he
Speaker 1: deals with the media and law enforcement in our court system,
Speaker 1: and uh, you know, I have no idea much of
Speaker 1: the rational reason behind some of the things that he's doing,
Speaker 1: some of the things that he's saying. Well, without you know,
Speaker 1: being able to get inside the head of the former
Speaker 1: president and his attorneys, what could be the endgame here
Speaker 1: for the formal president? What about the Affidavid would give
Speaker 1: a defendant an advantage if there are any charges brought
Speaker 1: that would benefit from having this affidavit unsealed. Well, again,
Speaker 1: depending what's in the affidavit, of course, he would be
Speaker 1: able to learn what witnesses had come forward and might
Speaker 1: be willing to testify, and uh, he would know have
Speaker 1: more information about what documents they actually the government has
Speaker 1: in its position, and so they would have a much
Speaker 1: better sense of the strength of their case. And so
Speaker 1: it would then at that point I think he would
Speaker 1: use that to gauge, well, what should I do here?
Speaker 1: Should I not be worried about this moving forward? And
Speaker 1: I'll use this as an opportunity to embarrass the government
Speaker 1: and to bolster my chances of winning the nominee four.
Speaker 1: I can continue to say that this is all po
Speaker 1: local witch hunt, knowing that, in fact, if they move forward,
Speaker 1: that I'm not gonna be prosecuted. On the other hand,
Speaker 1: if it looks like they've got some pretty strong evidence,
Speaker 1: I don't think he would calculate that he could deter
Speaker 1: he could bully his way out of its prosecution moving forward,
Speaker 1: but it may encourage him to perhaps have his lawyers
Speaker 1: sit down with the department and maybe negotiate some kind of,
Speaker 1: you know, plea deal or something like that. There's been
Speaker 1: a lot of talking, even you mentioned it, about how
Speaker 1: unprecedented this investigation is. But is there any case in
Speaker 1: history or investigation that even comes close in comparison or
Speaker 1: that you would compare this to not really, because, um,
Speaker 1: you know, in the history of our country, there's never
Speaker 1: been a former president that's had their home search. Um. Now,
Speaker 1: there may have been Polemary investigations of someone that you know,
Speaker 1: we just don't know about, but we're not aware of
Speaker 1: anything like like a search that occurred with respect to
Speaker 1: the Florida's state and it's for that reason you had
Speaker 1: the Attorney General make this decision. You know, total searches
Speaker 1: go on every day throughout this country and the Attorney
Speaker 1: jenial is not involved. In fact that there are many
Speaker 1: senior officials within main Justice in Washington were gone involved.
Speaker 1: Typically it's going to be a senior person at the U. S.
Speaker 1: Attorney's office somewhere in one of the states. But in
Speaker 1: this particular case, UM, this was because it was so unprecedented,
Speaker 1: UH and involved the former president who may be thinking
Speaker 1: about running for president, the Attorney general weighed end. When
Speaker 1: I was the Attorney General, I had the same situation
Speaker 1: where I had to make a call on a search
Speaker 1: that that was unprecedented and that involved the search of
Speaker 1: Congston William Jefferson's Congressional Hill office. UM. We can suspected
Speaker 1: Hill of bribery, influence peddling, and money laundering. And I
Speaker 1: was approached by senior members of my team at the
Speaker 1: Department of Justice who informed me that they believed that
Speaker 1: there was evidence in Connorsman Jefferson's Capitol Hill office and
Speaker 1: they wanted to conduct the search in the heretory of
Speaker 1: our country. Best ever been done before, where you had
Speaker 1: the FBI on Capitol Hill going through Congress in congressman's office. Now,
Speaker 1: we've conducted searches in the district offices of congressman's we've
Speaker 1: conducted searches in the cars of a congressman, but never
Speaker 1: in a Capitol Hill office. And they my team knew
Speaker 1: it was unprecedented and they wanted to make sure I
Speaker 1: was okay with it. In the same situation occurred with
Speaker 1: General Garland. The team knew this was unprecedented, and so
Speaker 1: they knew this was a decision had to be made
Speaker 1: by the Attorney General because it is so unprecedented, and
Speaker 1: quite frankly, the attorney you know, would want to know
Speaker 1: any advance that they're about to do this because the
Speaker 1: attorney you'll needs to weigh in. And very one final
Speaker 1: point that's very important. When we did our search UM,
Speaker 1: I did not notify the wine House because it's a
Speaker 1: law enforcement matter. You don't want to have this um
Speaker 1: characterized as politics by opponents, and so we just did
Speaker 1: what we do every day. And and my understanding is
Speaker 1: based upon the comments from General Garland, is that they
Speaker 1: didn't notify the White House either, because it's a law
Speaker 1: enforcement matter and they did it by the book and
Speaker 1: that's the way that they should be. That's really interesting.
Speaker 1: Does having the weight of the Attorney General's office behind
Speaker 1: an investigation room, backing an investigation like this, does that
Speaker 1: bolster your case that you could potentially bring. I mean,
Speaker 1: what advantage does that serve any Well? Well, it may
Speaker 1: at the outset in terms of rulings by the judge,
Speaker 1: but at the end of the day, it's going to
Speaker 1: be based you know, the charging decision and the decision
Speaker 1: decisions at the trial, strategy and the and the presentations
Speaker 1: at trial will be made based on the evidence. That's
Speaker 1: all you have. I mean, that's what you that's what
Speaker 1: you use, and that's what you flye upon the fact
Speaker 1: that the Attorney General has signed off on the search
Speaker 1: and he will sign off on the charging decision, I'm
Speaker 1: sure as well. I mean, if they don't decide to
Speaker 1: go forward, he will sign off on that. You know, again,
Speaker 1: it's all gonna be based on the evidence, not whether
Speaker 1: or not the Attorney General beliefs in fact that the
Speaker 1: crime has been committed here. But Canada Department, does the
Speaker 1: Department feel comfortable confident as it will a will persuade
Speaker 1: twelve independent um unbiased jurors that in fact, all the
Speaker 1: elements of a crime can be proved beyond a reasonable doubt.
Speaker 1: And then just really briefly, on a final note, the
Speaker 1: Justice Department has a week under the course order to
Speaker 1: propose what parts of the documents should be redacted and
Speaker 1: withheld from public view. How much information do you think
Speaker 1: at the end of the day the public is really
Speaker 1: going to learn from from this APPA, David, Well, as
Speaker 1: I said in sponsor and earlier question, I think that
Speaker 1: the public and in particular the press is going to
Speaker 1: be disappointed. I think they're not gonna learn much. Quite frankly,
Speaker 1: I think what will be release will be a very
Speaker 1: heavily redacted document that will not provide that will not
Speaker 1: be very satisfying to UM, Donald Trump and not satisfying
Speaker 1: to the media. I just because I do believe the
Speaker 1: course will be very sensitive protecting had any of witnesses
Speaker 1: and to protecting the integrity of the investigation going forward,
Speaker 1: despite the great public interest in this in in this manner,
Speaker 1: honorable Gonzoz, thank you so much for being here. You're
Speaker 1: listening to Bloomberg Law. I'm Lidia Wheeler and I'm Kimberly Robinson.
Speaker 1: Coming up, we speak with former Federal Appellate Court judge
Speaker 1: Michael McConnell about the latest LGBT battle at the U. S.
Speaker 1: Supreme Court and the ongoing clash for First Amendment rights.
Speaker 1: This is Bloomberg. This is Bloomberg Law with June Grasso
Speaker 1: from Bloomberg Radio. I'm Lidia Wheeler and I'm Kimberly Robinson.
Speaker 1: We're in for June Grasso. We're joined now by a
Speaker 1: former federal judge, Michael McConnell, to talk about Three or
Speaker 1: Three Creative, a Supreme Court case of the justices will
Speaker 1: take up in the upcoming term. The case pits a
Speaker 1: state anti discrimination law meant to protect same sex couples
Speaker 1: against free speech rights. And we've seen a version of
Speaker 1: this dispute at the High Court before in the case
Speaker 1: of a Colorado baker who said his religious beliefs prevented
Speaker 1: him from making a custom wedding cake for same sex couple.
Speaker 1: This time around, though, the dispute, also out of the
Speaker 1: Centennial State, involves a web designer who says she can't
Speaker 1: design custom websites for same sex couples without violating her
Speaker 1: sincerely held religious beliefs. Briefing from both sides and their
Speaker 1: so called friends or amichi wrapped up last week, setting
Speaker 1: up the case to be heard sometime in late or
Speaker 1: early Judge McConnell as I mentioned, this case is very
Speaker 1: similar to Masterpiece Cake Shop, which the Justice is decided in,
Speaker 1: but it differs in one really important way, and that's
Speaker 1: that this dispute is framed as one about free speech
Speaker 1: instead of religious liberty. What if any difference is that
Speaker 1: going to make this time around. Well, I think it
Speaker 1: greatly simplifies and narrows the case because a free exercise
Speaker 1: claim might be brought by anyone whose beliefs prevent them
Speaker 1: working with same sex wedding. This as a speech case,
Speaker 1: this is combined just to people whose activities are expressive
Speaker 1: in nature, people are actually speaking, so it's a much
Speaker 1: narrow work case. This didn't start out as just a
Speaker 1: free speech case though. In the beginning, the web designer
Speaker 1: asked the justices to consider whether the state's anti discrimination
Speaker 1: law violated her religious freedom um. But the Justice has
Speaker 1: actually changed the question they were asked to sign and
Speaker 1: honed in exclusively on this speech right. So I'm curious
Speaker 1: how often do you see the court do something like
Speaker 1: that where they rewrite the question and what does that signal?
Speaker 1: So it doesn't happen very often. I mean, this is
Speaker 1: not a unicorn. It happens from time to time, but
Speaker 1: this is somewhat unusual, and it indicates that the Court
Speaker 1: really wants to focus in on the speech claim, which,
Speaker 1: as I say, is narrower uh, and not the broader
Speaker 1: free exercise client m. So we've seen the Roberts Court
Speaker 1: under Chief Justice John Roberts issue ruling after ruling that
Speaker 1: a pretty protective of religious rights, particularly the right to
Speaker 1: freely exercise uh, your religion. And that was so just
Speaker 1: his last term in cases involving educational funding and school prayer.
Speaker 1: I'm wondering, does the Court's reframing of this case as
Speaker 1: one involving only speech signal that the Court is kind
Speaker 1: of shifting away from robustly protecting religious rights. Have we
Speaker 1: reached kind of the high water mark there? I don't
Speaker 1: think so. I don't think it indicates anything of the sort.
Speaker 1: It indicates that the facts of this case seemed to
Speaker 1: map more clearly onto free speech doctrine than anything else,
Speaker 1: and then so can you just give our listeners a
Speaker 1: brief rundown about what the major issues here are as
Speaker 1: the justices are set to decide this case. This case
Speaker 1: is simpler in many ways than the earlier cases that
Speaker 1: have gone up to the court, especially the one about
Speaker 1: the baker. The main reason it's simpler is that there
Speaker 1: is no dispute in this case that the conduct is
Speaker 1: expressive and you know when when when looking at a
Speaker 1: wedding cake. The justices were somewhat uncertain as to how
Speaker 1: to view that, and during the oral argument, Justice Soda
Speaker 1: Mayor said that the cake was just food, indicating that
Speaker 1: it didn't really have an expressive component to it. But
Speaker 1: in this case, the lower court specifically held that web
Speaker 1: design is speech and treated it as such. And secondly,
Speaker 1: there is no dispute in the case that the web
Speaker 1: designer does not discriminate on the basis of sexual orientation.
Speaker 1: She does not refuse to provide services to same sex couples.
Speaker 1: What she refuses to do is to provide services to
Speaker 1: any event that she believes is contrary to her beliefs.
Speaker 1: So it's specifically not a case about discrimination on the
Speaker 1: basis of orientation. It's discrimination on the basis of the message,
Speaker 1: and that makes this a much clearer case of a
Speaker 1: free speech violation than the earlier decisions that had gone
Speaker 1: up to the court. It doesn't seem like this a
Speaker 1: case is going to end this tension between you know,
Speaker 1: the First Amendment and LGBT issues. I'm curious as to
Speaker 1: what other disputes could be on the horizon here. Well,
Speaker 1: the Supreme Court decisions never end disputes that they could
Speaker 1: sometimes make them worse, and I am hoping that this
Speaker 1: would be an occasion for the Court to try to
Speaker 1: calm the waters rather than boil them. I think transgender
Speaker 1: issues are probably the biggest issue that are coming down
Speaker 1: the pike in terms of forcing people to say things
Speaker 1: that are affirming. There was a six Circuit decision not
Speaker 1: long ago about a tenure college professor who refused to
Speaker 1: use students selected pronouns in class, and the court held
Speaker 1: that he had a right not to be forced to
Speaker 1: use pronouns that reflected a view that he disbelieved them. Well,
Speaker 1: that's Michael McConnell who said on the US Court of
Speaker 1: Appeals for the tense Circuit, which here's disputes like this
Speaker 1: one out of Colorado. McConnell is now professor at Stanford
Speaker 1: Law and the director of the school's Constitutional Law Center.
Speaker 1: You're listening to Bloomberg Law. Up next, we continue our
Speaker 1: conversation with Judge McConnell. I'm Kimberly Robinson and I'm Lidio Wheeler.
Speaker 1: This is Bloomberg. This is Bloomberg Law with June Grasso
Speaker 1: from Bloomberg Radio. I'm Kimberly Robinson and I'm Lydia Wheeler.
Speaker 1: We're in Virjune Grasso. We've been talking with former federal
Speaker 1: judge Michael McConnell about the latest battle between LGBT rights
Speaker 1: and the first Amendment to come before the U. S.
Speaker 1: Supreme Court. So I wanted to get into the legal
Speaker 1: arguments of this case. Three or three creative Uh. The
Speaker 1: court below, the court that you yourself set on for
Speaker 1: a number of years, said that Colorado's antidiscrimination law compels
Speaker 1: citizens to speak and at the same time prevents them
Speaker 1: from saying certain things. Typically, such findings would doom the
Speaker 1: law under what's known in the legal world as strict scrutiny.
Speaker 1: But that's not what happened here. Can you tell us
Speaker 1: a little bit about the various levels of scrutiny that
Speaker 1: courts will apply when looking to see whether or not
Speaker 1: a law passes constitutional muster and what happened in this case.
Speaker 1: This is an over simple apification, but there are basically
Speaker 1: three levels of scrutiny. Rational basis scrutiny is a case
Speaker 1: where yes, there may be a right involved, but it's
Speaker 1: not a fundamental right, it's not a clearly established right,
Speaker 1: and all that the government needs to do is to
Speaker 1: show that it has a rational basis for its action.
Speaker 1: Then there is that the opposite in strict scrutiny, which
Speaker 1: is where there is a presumptive violation of an important
Speaker 1: constitutional right and the government is not permitted to do
Speaker 1: that unless it has what's called a compelling governmental interests,
Speaker 1: which is an extremely powerful interest that could not be
Speaker 1: satisfied in a less restrictive manner. In between is something
Speaker 1: called intermediate scrutiny, which requires uh an important though not
Speaker 1: compelling interests, and narrow tailoring but not the least restrictive means.
Speaker 1: Free speech claims, where the government is actually regulating on
Speaker 1: the basis of the content of what someone says says
Speaker 1: are always governed by strict scrutiny, and quite frankly, they're
Speaker 1: almost as is automatic invalidation. I mean when one scholar
Speaker 1: famously described it a strict in theory, but fatal in fact.
Speaker 1: It would be highly unusual for the court to hold
Speaker 1: that strict scrutiny applies in this case, but that the
Speaker 1: state wins anyway. But that's what happened in the court below, right,
Speaker 1: And so was that a bit surprising. The decision below
Speaker 1: was really quite surprising. The logic of the decision was that, yes,
Speaker 1: this was compelled speech. That web designer was being forced
Speaker 1: to say something that she didn't believe in, and that's
Speaker 1: ordinarily a clear violation of the First Amendment. But in
Speaker 1: this case, the state had a compelling interest, according to
Speaker 1: the court, because her web designs are unique. Uh. This
Speaker 1: is not like you know, going to the grocery store
Speaker 1: and buying a commodity. It's not like buying a cake
Speaker 1: off the shelf of the bakery. Uh. Each web design
Speaker 1: is unique, and the web designer is highly skilled and
Speaker 1: artistic and so forth. And so what the court held
Speaker 1: was that the state has a compelling interest to protect
Speaker 1: LBGT couples UH seeking same sex marriage. Website designs that
Speaker 1: they need to be protected because they are entitled to
Speaker 1: this highly unique service. Now, this is very surprising because
Speaker 1: it's it actually flips the usual argument. The usual argument
Speaker 1: is that um and when when you talk about somebody
Speaker 1: like a baker, which was the last case, that if
Speaker 1: the person is simply buying goods off the shelf like
Speaker 1: pre made cakes, that the discrimination laws apply, but that
Speaker 1: they don't apply when an artistic or expressive person has
Speaker 1: to has to do a unique um item and the
Speaker 1: tent circuit in this case that it was the other
Speaker 1: way around. That it's when you're seeking the unique services
Speaker 1: of an artist that the discrimination laws apply. That is
Speaker 1: highly counterintuitive conclusion. Interesting, Honorable McConnelly. Do you have an
Speaker 1: idea of how the Supreme Court will approach this case?
Speaker 1: You know? And are there any particular justices that you're
Speaker 1: watching clufully here. Well, it's very hard to predict a
Speaker 1: court that this This looks like it's a case it's
Speaker 1: destined to be reversed at least six to three. And
Speaker 1: I wonder if it might be This is total speculation
Speaker 1: and I could be wrong, but I wonder if it
Speaker 1: might be that the court reached out for this especially
Speaker 1: powerful case and narrowed it in the way that they
Speaker 1: did in order to produce a unanimous decision. It would
Speaker 1: be very good for our culture for the Supreme Court
Speaker 1: to speak unanimously on an issue that is this fraught
Speaker 1: and contentious, and it might help establish the idea that
Speaker 1: the decisions creating a right the same sex marriage we're
Speaker 1: really intended to be freedom decisions to allow people the
Speaker 1: freedom to marriage, to engage in marriage, but not an
Speaker 1: oppressive decision that forces everyone else to be as to
Speaker 1: how they uh speak about it. And so I wonder
Speaker 1: if maybe this is a prelude to a unanimous decision
Speaker 1: that would help calm the waters of this uh devisive issue. Well,
Speaker 1: that's interesting. You know. We we talked a bit about
Speaker 1: how this case is like the Masterpiece cake Shop that
Speaker 1: the Justice has heard before, and they were able to
Speaker 1: avoid kind of the regular split in that case by
Speaker 1: taking sort of an off ramp, And that is to
Speaker 1: say that they decided a really narrow factual issue in
Speaker 1: that case and send the dispute back to the lower
Speaker 1: courts to deal with. I'm wondering, do you think this
Speaker 1: time around will actually get an answer as to how
Speaker 1: these state and A discrimination laws are meant to interact
Speaker 1: with First Amendment rights or do you think the court
Speaker 1: is going to look for and take another one of
Speaker 1: these kind of off roads. I don't see any obvious
Speaker 1: off ramp here. Again, it's hard to predict, but I
Speaker 1: think we'll get a real answer to the underlying question,
Speaker 1: and I think the answer is most likely to be yes.
Speaker 1: People have a constitutional right to UM marry whom they want.
Speaker 1: The same sex marriage is constitutionally protected, but private citizens
Speaker 1: are not required to speak in support of that that
Speaker 1: people who don't approve of same sex marriage are entitled
Speaker 1: to have their opinion. Who So, it strikes me that
Speaker 1: both of these cases UM come out of Colorado, and
Speaker 1: there is discussion in the corporlo about this masterpiece take
Speaker 1: shop and how the commission there and how a commission
Speaker 1: here would be kind of drawing off of that previous case.
Speaker 1: I wonder is it a coincidence that both of these
Speaker 1: cases come out of Colorado or is there something in
Speaker 1: particular about Colorado's law and the way that it's being
Speaker 1: enforced that is bringing these issues really UM to the forefront. Well,
Speaker 1: other states have similar laws, and some of somewhat parallel
Speaker 1: cases have come off out of Arizona in the state
Speaker 1: of Washington, and I think they're bubbling up elsewhere. My
Speaker 1: guess is that this is not quite a coincidence, though
Speaker 1: it's probably the case, and I really don't know, this
Speaker 1: is speculation, but it's probably the case that the Colorado
Speaker 1: Commission is especially aggressive. Interesting. You know, in the petition,
Speaker 1: the website designer here says that the Colorado law actually
Speaker 1: creates this pro LGBT Jerrymander, and I was hoping that
Speaker 1: you might be able to explain for us how exactly
Speaker 1: it does that. Well, the reason for that argument is
Speaker 1: that in general, artists, including web designers, uh, any person
Speaker 1: engaged in an expressive activity, have the right to reserve
Speaker 1: their speech for what they want. And so, you know,
Speaker 1: nobody told Michelangelo that he had to do things that
Speaker 1: were supportive of the church rather than against it. Artists
Speaker 1: are free. The R and D discrimination laws, for the
Speaker 1: for the most part, don't even touch that. It's highly
Speaker 1: unusual a law. But here because of the protection for
Speaker 1: LGBT discrimination. That means that one side in this culture
Speaker 1: dispute is protected and the other isn't. So that if
Speaker 1: a web designer decided to specialize in lb GT weddings
Speaker 1: and same sex weddings. Uh, they would be fine. It
Speaker 1: was perfectly okay to specialize for same sexed weddings, is
Speaker 1: by the way I think it should be. Uh, It's
Speaker 1: just that it's not okay when it's the other way around.
Speaker 1: And that is I believe why the party in this
Speaker 1: case argues that this is a gerryman or it's a
Speaker 1: kind of viewpoint discrimination. M So I want to try
Speaker 1: to understand the implications if the Supreme Court allows the
Speaker 1: lower court ruling to stand. I'm wondering what will states
Speaker 1: be allowed to require, um, not just for website designers,
Speaker 1: but going forward, even out of the wedding business. You know,
Speaker 1: are there things that the government could force people to
Speaker 1: say or do if this case stands the way that
Speaker 1: it is now, The potential and occasions are very broad.
Speaker 1: Should you do it? I don't know. I think that
Speaker 1: the impulse to force uh supportive speech in this particular
Speaker 1: area it is particularly strong. That means so for But
Speaker 1: to use an example sort of from the other side
Speaker 1: of a spectrum, you know, imagine that a a web
Speaker 1: designer or cakemaker or whoever, it was was being asked
Speaker 1: to give a to provide their services to a Roman
Speaker 1: Catholic or Mormon or other Islamic religious meeting at which uh,
Speaker 1: same sex marriages were being condemned, and they say, well, no,
Speaker 1: I'm not going to do that. I disapproval. That's in
Speaker 1: a sense religious discrimination. They're refusing to serve a particular
Speaker 1: religious service, and I think under the logic they could
Speaker 1: be forced to do that thanks to Michael McConnell. And
Speaker 1: that does it for this episode of Bloomberg glob I'm
Speaker 1: Kimberly Robinson and I'm Lydia Wheeler. This is Bloomberg m