WEBVTT - Battle Over Conversion Therapy 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grossel from Bloomberg Radio. 0:00:08.880 --> 0:00:11.600 Your parents signs you up for a program to fix you. 0:00:11.960 --> 0:00:14.440 Welcome to the refuge program. 0:00:14.120 --> 0:00:14.319 Film. 0:00:14.480 --> 0:00:17.040 You cannot be born or home sexual This is a lie. 0:00:17.160 --> 0:00:19.960 It's a choice. Come take it till you make it 0:00:20.040 --> 0:00:20.720 a come to man. 0:00:20.800 --> 0:00:25.160 You are not save yourself, Jared. God will not love 0:00:25.280 --> 0:00:26.640 you the way that you are. 0:00:27.520 --> 0:00:28.480 Is this what you want? 0:00:28.720 --> 0:00:30.360 Who's going to strike this demon down? 0:00:30.560 --> 0:00:33.760 The movie boy Erased is about the gay son of 0:00:34.040 --> 0:00:38.600 ultra religious parents who sent to conversion therapy to change 0:00:38.640 --> 0:00:42.880 his sexual identity, which conflicts with his parents Christian beliefs. 0:00:43.280 --> 0:00:47.040 It's based on the memoir by Garret Conley that exposes 0:00:47.080 --> 0:00:51.479 the abuses of conversion therapy. Twenty eight states fully or 0:00:51.600 --> 0:00:56.080 partially banned conversion therapy, which the major medical and mental 0:00:56.080 --> 0:01:00.440 health organizations in the US have condemned for decades as 0:01:00.560 --> 0:01:06.440 unscientific and potentially dangerous for teenagers, increasing the risk of depression, 0:01:06.680 --> 0:01:10.960 substance abuse, and suicide. And now the Supreme Court has 0:01:11.000 --> 0:01:15.280 decided to take up a First Amendment challenge to Colorado's 0:01:15.360 --> 0:01:19.679 ban on conversion therapy. A licensed counselor who views her 0:01:19.720 --> 0:01:22.920 work as an outgrowth of her Christian faith, says the 0:01:23.000 --> 0:01:27.000 band violates her First Amendment free speech rights. My guest 0:01:27.080 --> 0:01:30.800 is First Amendment law expert Caroline Malick Corbin, a professor 0:01:30.840 --> 0:01:34.080 at the University of Miami Law School. Caroline tell us 0:01:34.080 --> 0:01:34.919 about this case. 0:01:35.840 --> 0:01:41.199 So, the Supreme Court has granted thirt meaning it will 0:01:41.319 --> 0:01:46.240 hear a case involving a law that bans what is 0:01:46.360 --> 0:01:51.840 known as conversion therapy. Its more official designation is sexual 0:01:51.880 --> 0:01:57.920 orientation change efforts, and this is basically an attempt to 0:01:58.160 --> 0:02:04.600 make gay kids straight. That's their historical origins. More specifically, 0:02:05.360 --> 0:02:10.400 the law says that licensed counselors, so it's limited to 0:02:10.520 --> 0:02:17.840 licensed counselors, cannot practice conversion therapy on minors. So if 0:02:17.880 --> 0:02:23.120 you want to undergo this so called counseling as an adult, 0:02:23.639 --> 0:02:30.760 you are allowed to, but practitioners of mental health cannot 0:02:30.919 --> 0:02:35.600 practice conversion therapy on minors. I also note that there 0:02:35.639 --> 0:02:39.520 is an exemption for therapists engaged in the practice of 0:02:39.560 --> 0:02:45.280 religious ministry. So the reason why the law has banned 0:02:45.680 --> 0:02:52.640 conversion therapy is that it is unscientific, harmful, and futile. 0:02:53.240 --> 0:03:01.560 So all the reputable medical associations have come out against 0:03:01.560 --> 0:03:07.840 it for two reasons. One, you can't change someone's sexual orientation, 0:03:08.280 --> 0:03:13.240 and second, studies show that it actually hurts kids. So, 0:03:13.440 --> 0:03:20.679 for example, one study found that even holding constant other valuables, 0:03:21.400 --> 0:03:26.239 the children who have been subjected to this therapy or 0:03:26.520 --> 0:03:30.600 twice as likely to think about suicide and at least 0:03:30.639 --> 0:03:35.520 twice as likely to try suicide. So, states who have 0:03:35.600 --> 0:03:39.400 a long history of regulating the medical profession and ensuring 0:03:39.560 --> 0:03:45.760 that practices conform with standards of care decided this is 0:03:45.800 --> 0:03:48.400 not a practice we should allow in our states, and 0:03:48.600 --> 0:03:53.440 Colorado is one of about twenty states that therefore have 0:03:54.400 --> 0:04:01.840 forbidden this practice four licensed medical professions as applied kids minors, 0:04:02.280 --> 0:04:07.720 children under eighteen. So that's the law that's being challenged. Now. 0:04:08.120 --> 0:04:14.720 This licensed professional counselor, Kaylie Chiles is challenging it, saying 0:04:14.720 --> 0:04:18.000 it violates her rights to free speech. I mean, she 0:04:18.080 --> 0:04:20.760 did a free exercise of religion. Lame I think below, 0:04:20.960 --> 0:04:23.720 But this at the Supreme Court is just about violating 0:04:23.760 --> 0:04:24.839 her free speech rights. 0:04:25.279 --> 0:04:29.120 Correct. She brought two claims below. But the only question 0:04:29.240 --> 0:04:33.479 that is going before the Supreme Court is whether a 0:04:33.600 --> 0:04:40.640 law banning a particular counseling practice violates the free speech. 0:04:40.320 --> 0:04:44.320 Clause, how does the counselor say it violates her free 0:04:44.320 --> 0:04:45.160 speech rights. 0:04:46.160 --> 0:04:52.400 The legal question turns on whether you think of counseling 0:04:53.080 --> 0:04:57.440 as a conduct, the practice of medicine, or you think 0:04:57.480 --> 0:05:02.160 of counseling as pure speech. And this matters because the 0:05:02.200 --> 0:05:07.359 government has a lot more leeway to regulate the practice 0:05:07.360 --> 0:05:11.880 of medicine even if it incidentally affects speech, then it 0:05:11.960 --> 0:05:17.920 does regulating speech. Generally, the presumption is that if the 0:05:18.000 --> 0:05:24.560 government is regulating speech because of its content or viewpoint, 0:05:24.760 --> 0:05:27.200 if it's trying to tell people what they are allowed 0:05:27.320 --> 0:05:31.920 or not allowed to say, that kind of content regulation 0:05:32.200 --> 0:05:37.840 is presumptively unconstitutional. Generally, we don't want the government deciding 0:05:38.360 --> 0:05:41.240 what we're allowed to say or what we're allowed to hear. 0:05:41.839 --> 0:05:46.960 So if this is considered a regulation of speech, then 0:05:47.160 --> 0:05:50.520 it is problematic under the free speech clause. It's not 0:05:50.640 --> 0:05:57.520 automatically unconstitutional, it's presumptively unconstitutional. On the other hand, if 0:05:57.560 --> 0:06:02.279 it is viewed as in regulation of medical practice the 0:06:02.360 --> 0:06:06.360 regulation of conduct, then the state is going to have 0:06:06.400 --> 0:06:10.680 a much easier time of showing this is just ensuring 0:06:11.000 --> 0:06:15.039 that people who are licensed by the state are meeting 0:06:15.240 --> 0:06:18.159 standards of care. In the medical practice. And this is 0:06:18.160 --> 0:06:22.760 something the states have always done right regulate what doctors 0:06:22.800 --> 0:06:26.400 can and can't do, and including folding into that what 0:06:26.480 --> 0:06:29.400 they can and can't say as part of their practice 0:06:29.400 --> 0:06:30.160 of medicine. 0:06:30.360 --> 0:06:34.799 The tense Circuit Court of Appeals, in a divided opinion 0:06:35.360 --> 0:06:38.680 sided with Colorado, explain what their reasoning was. 0:06:39.560 --> 0:06:44.120 Okay, here's the thing. This is not the first time 0:06:44.440 --> 0:06:49.039 court has ever encountered the question of how should we 0:06:49.080 --> 0:06:53.920 think about regulation of medicine even if it involves speech. 0:06:55.360 --> 0:06:59.680 And the backdrop to this case is the Supreme Court's 0:06:59.800 --> 0:07:04.679 ruling about abortion counseling. So this case is about mental 0:07:04.720 --> 0:07:10.960 health counseling. There is precedence on abortion counseling. By abortion counseling, 0:07:11.640 --> 0:07:16.880 I mean the laws in many states that require doctors 0:07:17.080 --> 0:07:21.080 before they provide an abortion to a woman requires the 0:07:21.200 --> 0:07:26.960 doctors to read, often a state dictated script about the 0:07:27.080 --> 0:07:32.080 dangers and perils of abortion and about the alternatives to abortion. 0:07:32.680 --> 0:07:38.640 So just about every state requires that abortion providers say 0:07:39.200 --> 0:07:44.000 this script or provide this information to women before they 0:07:44.000 --> 0:07:48.840 are allowed to have an abortion, and doctors challenge those 0:07:48.960 --> 0:07:53.040 regulations as violating their free speech. They said, you are 0:07:53.600 --> 0:07:57.720 compelling us to say things that aren't necessarily accurate and 0:07:57.800 --> 0:08:00.560 certainly not what we would normally say on under our 0:08:00.840 --> 0:08:05.480 normal practice of medicine. And the Supreme Court upheld the 0:08:05.520 --> 0:08:10.600 abortion counseling on the grounds that it was not a 0:08:10.720 --> 0:08:15.880 direct regulation of speech, but a regulation of the medical 0:08:15.920 --> 0:08:23.920 profession that happened to affect speech. So basically, the precedent 0:08:24.080 --> 0:08:28.720 that the Tenth Circuit relied on was precedent the Supreme 0:08:28.800 --> 0:08:34.320 Court had created when ruling about abortion counseling. And so 0:08:34.440 --> 0:08:38.600 the Tenth Circuit to just said, listen, if the state 0:08:38.720 --> 0:08:42.440 telling the doctors what they must say to women before 0:08:42.440 --> 0:08:46.120 they have an abortion, if abortion counseling is merely the 0:08:46.160 --> 0:08:52.840 regulation of the medical profession, then surely the regulation of 0:08:52.960 --> 0:08:57.520 a kind of therapy in mental health counseling is also 0:08:58.200 --> 0:09:04.520 the regulation of medicine that incidentally affects speech. That was 0:09:04.559 --> 0:09:08.720 the argument that the Tenth Circuit and probably the District 0:09:08.720 --> 0:09:14.040 Court below made to support their claims that this is 0:09:14.120 --> 0:09:18.920 not a direct attack on speech, it's a regulation of medicine. 0:09:19.320 --> 0:09:22.400 In twenty twenty three, the Court refused to take a 0:09:22.600 --> 0:09:27.080 challenge to a similar ban in Washington State that was 0:09:27.160 --> 0:09:32.840 over the dessense of three justices Conservatives Clarence Thomas, Samuel Alito, 0:09:32.880 --> 0:09:35.960 and Brett Cavanaugh. So that means that they've gotten at 0:09:36.040 --> 0:09:39.480 least one other justice on their side, because they need 0:09:39.520 --> 0:09:41.480 four votes to take a case. 0:09:42.000 --> 0:09:46.800 Exactly right. So generally one of the major reasons that 0:09:46.880 --> 0:09:50.480 the Supreme Court will decide to hear a case is 0:09:50.480 --> 0:09:53.000 if there's a circuit split. And there is a circuit 0:09:53.040 --> 0:09:56.800 split on this issue. So the Eleventh Circuit has held 0:09:56.880 --> 0:10:00.920 that these bans violate free speech claw us, and the 0:10:01.000 --> 0:10:05.679 ninth and tenth have held no, they are perfectly constitutional, 0:10:06.559 --> 0:10:09.880 And there was a split even a couple of years ago. 0:10:10.080 --> 0:10:14.600 But as you explain, the Supreme Court doesn't hear every 0:10:14.640 --> 0:10:17.840 appeal that goes before it. They only hear an appeal 0:10:17.880 --> 0:10:21.480 that at least four justices want to hear, and in 0:10:21.559 --> 0:10:24.880 twenty twenty three there were not four, but this year 0:10:25.120 --> 0:10:29.960 there are four, so that's enough to hear the case. 0:10:30.679 --> 0:10:34.200 We don't know who the fourth is because they don't 0:10:34.200 --> 0:10:36.560 announce who they are. I mean, we can guess that 0:10:36.640 --> 0:10:39.680 the dissenters are three of them, but we don't know 0:10:39.720 --> 0:10:40.480 who the fourth is. 0:10:40.960 --> 0:10:43.200 Now I can't give one hundred percent guarantee on this, 0:10:43.320 --> 0:10:46.560 but it's most likely that the fourth vote is one 0:10:46.640 --> 0:10:49.959 of the other Conservative justices. Does the fact that it's 0:10:50.000 --> 0:10:53.280 the Conservatives that want to take this case up tell 0:10:53.320 --> 0:10:56.360 you that they're looking to reverse the Tenth Circuit, in 0:10:56.400 --> 0:10:59.600 other words, strike down the ban on conversion therapy. 0:11:00.280 --> 0:11:05.520 Personally, I am always nervous when the Supreme Court grants 0:11:05.559 --> 0:11:10.679 cert in a case involving a Conservative Christian who wants 0:11:10.720 --> 0:11:15.319 to inflict some kind of harm on a vulnerable community 0:11:15.480 --> 0:11:19.080 like the LGBT community, because I think the Supreme Court 0:11:19.280 --> 0:11:25.079 is exceptionally receptive to the claims of conservative Christians, and 0:11:25.240 --> 0:11:30.960 I think they are especially willing or they really don't 0:11:31.000 --> 0:11:36.920 show much care about the consequences of the religious practices 0:11:36.960 --> 0:11:40.199 of conservative Christians and how they harm those in the 0:11:40.320 --> 0:11:44.640 LGBT community. So I'm worried. On the other hand, at 0:11:44.679 --> 0:11:48.400 this point, we know there are four votes, but we 0:11:48.520 --> 0:11:52.400 don't yet know if there are five votes. Though that 0:11:53.080 --> 0:11:57.480 is not all of that reassuring, but at least it's 0:11:57.559 --> 0:12:00.280 not a completely foregone conclusion. 0:12:00.080 --> 0:12:03.000 Coming up the culture war classes at the Supreme Court. 0:12:03.200 --> 0:12:07.560 This is bloomberg. The Supreme Court has agreed to consider 0:12:07.840 --> 0:12:11.800 whether scores of state and local governments are violating the 0:12:11.840 --> 0:12:17.160 Constitution by banning conversion therapy. The Justices we'll hear a 0:12:17.280 --> 0:12:21.520 challenge to Colorado's ban from a licensed to Christian counselor 0:12:21.800 --> 0:12:25.560 who says the twenty nineteen law violates her free speech rights. 0:12:25.840 --> 0:12:28.760 I've been talking to Professor Caroline mal Corbin at the 0:12:28.880 --> 0:12:33.400 University of Miami Law School. Caroline, the licensed counselor who's 0:12:33.520 --> 0:12:38.400 challenging the ban is being represented by the Alliance Defending Freedom, 0:12:38.440 --> 0:12:42.320 which is a conservative Christian law firm and advocacy group 0:12:42.800 --> 0:12:45.400 that has one case is at the Supreme Court before 0:12:45.440 --> 0:12:48.960 in Colorado involving the baker who didn't want to bake 0:12:49.080 --> 0:12:53.280 cakes for gay weddings and the web designer who didn't 0:12:53.320 --> 0:12:57.040 want to design websites for gay weddings, even though no 0:12:57.040 --> 0:12:59.960 one had asked her to design a website for gay weddings. 0:13:00.440 --> 0:13:03.000 Yes, the group that's bringing this is a group that 0:13:03.200 --> 0:13:08.960 regularly brings challenges to anti discrimination laws on behalf of 0:13:09.080 --> 0:13:13.839 conservative Christians, and this is yet another one, and they've 0:13:13.880 --> 0:13:17.240 had incredible success before the Supreme Court. I think they 0:13:17.240 --> 0:13:24.840 were also the group that challenged California's attempts to require 0:13:25.559 --> 0:13:30.240 crisis pregnancy centers, which often pretend to be comprehensive medical 0:13:30.280 --> 0:13:34.080 centers when they're not. They're just anti abortion places that 0:13:34.200 --> 0:13:38.360 try in lure women into their doors and then they 0:13:38.480 --> 0:13:42.480 lie to women about the availability of abortion to try 0:13:42.520 --> 0:13:46.040 and prevent them from having an abortion. Anyhow, California tried 0:13:46.080 --> 0:13:50.920 to deal with this practice by requiring crisis pregnancy centers 0:13:51.360 --> 0:13:54.480 to let people know that they were not, in fact 0:13:54.640 --> 0:13:58.960 a licensed medical provider, even though they often pretended to 0:13:59.000 --> 0:14:02.840 be one. And the Supreme Court, howd that violated the 0:14:02.960 --> 0:14:06.839 crisis pregnancy center's pre speech rights as well. And again 0:14:06.880 --> 0:14:09.520 I think that Alliance Defending Freedom Miner brought that case 0:14:09.559 --> 0:14:15.040 as well. So there is definitely a pattern of cases 0:14:15.520 --> 0:14:21.040 brought claiming free speech violations of regulations that are designed 0:14:21.080 --> 0:14:27.520 to protect from harm and to protect from discrimination, and 0:14:27.640 --> 0:14:31.480 these are getting struck down in the name of pre speech. 0:14:32.160 --> 0:14:35.440 The Supreme Court seems to be, you know, with zest 0:14:35.560 --> 0:14:42.960 picking up these cases involving transgender youth or LGBTQ friendly books. 0:14:43.000 --> 0:14:47.239 I mean, we already heard the oral arguments over Tennessee's 0:14:47.320 --> 0:14:52.080 ban on gender affirming treatments for minors, and those arguments 0:14:52.080 --> 0:14:56.280 suggested that the conservative justices are likely to uphold that ban. 0:14:56.800 --> 0:15:01.000 And in April we're going to hear apparent challenging LGBTQ 0:15:01.400 --> 0:15:04.880 friendly books in the classroom. I mean, why is a 0:15:04.960 --> 0:15:09.240 court that's near the lowest levels of public approval in 0:15:09.280 --> 0:15:13.440 its history diving into all these culture war issues. 0:15:14.440 --> 0:15:17.640 I cannot speak for the justices, but it may be 0:15:18.040 --> 0:15:21.760 that they have the power to remake the law to 0:15:21.920 --> 0:15:26.160 further their own views, and they're grabbing that power and 0:15:26.280 --> 0:15:26.680 using it. 0:15:27.920 --> 0:15:32.680 And how did a case about LGBTQ friendly books in 0:15:32.720 --> 0:15:36.400 the Maryland school system where a federal appeals court said 0:15:36.440 --> 0:15:39.160 it wasn't even clear yet how the books would be 0:15:39.280 --> 0:15:42.720 used in the classroom, how does that get Supreme Court review? 0:15:43.320 --> 0:15:46.360 By the way, the books include one about a puppy 0:15:46.440 --> 0:15:50.880 that gets lost at an LGBTQ pride parade and a 0:15:50.920 --> 0:15:55.920 young child whose gender identity doesn't match his birth assigned sex. 0:15:57.240 --> 0:16:03.440 So in that case, they're is a parent who objects 0:16:03.520 --> 0:16:10.600 to their child reading books with lgbt characters, and they 0:16:10.920 --> 0:16:14.800 make a claim based on parental rights that they have 0:16:14.960 --> 0:16:20.120 the right to opt their children out of reading books 0:16:20.160 --> 0:16:23.320 on the set curriculum in the name of religion. So 0:16:23.400 --> 0:16:27.560 they argument is our religion does not approve of this. 0:16:27.960 --> 0:16:31.200 It violates our religion if our apparently, if our child 0:16:31.360 --> 0:16:35.200 knows gay people exist, and therefore our child in public 0:16:35.240 --> 0:16:37.640 schools doesn't have to read this book, and we have 0:16:37.680 --> 0:16:41.200 a religious right to take our child who exempt our 0:16:41.320 --> 0:16:44.800 child from the curriculum. So that is another case before 0:16:44.840 --> 0:16:48.320 the Supreme Court. Again, when you have a conflict between 0:16:48.760 --> 0:16:55.280 conservative religion and LGBT rights, generally, with this particular Supreme Court, 0:16:55.600 --> 0:17:00.000 conservative religion wins. It almost doesn't matter what the doctrine is. 0:17:01.160 --> 0:17:04.680 I'm still stunned by their ruling in twenty twenty two 0:17:04.760 --> 0:17:10.200 where they allowed a Christian football coach to pray at 0:17:10.240 --> 0:17:14.439 the fifty yard line right after games, surrounded by his 0:17:14.600 --> 0:17:18.000 high school players. And it seems like behind all these 0:17:18.280 --> 0:17:23.600 cases involving LGBTQ rights, it's really about religion. 0:17:24.359 --> 0:17:27.440 I do think a lot of this is driven by religion, 0:17:27.600 --> 0:17:32.320 but often it's easier to make a speech claim rather 0:17:32.400 --> 0:17:35.040 than a religion claim, although not all of them or 0:17:35.160 --> 0:17:39.440 speech claims. One we're talking about now is the challenge 0:17:39.520 --> 0:17:43.760 to the conversion therapy ban is before the court a 0:17:43.800 --> 0:17:47.200 free speech claim, which again it's sort of speech is 0:17:47.280 --> 0:17:52.000 being used to attack regulations that people used to never 0:17:52.240 --> 0:17:56.520 think twice about, and so there is definitely a strand 0:17:56.840 --> 0:18:01.760 of people exploiting speech. At the same time, speech is 0:18:01.800 --> 0:18:05.840 crucial in a democracy, but we've always understood there were 0:18:05.880 --> 0:18:06.440 limits to. 0:18:06.400 --> 0:18:11.040 It, Caroline. Also coming up in April is the effort 0:18:11.160 --> 0:18:15.000 to create the country's first religious public charter school. And 0:18:15.040 --> 0:18:17.280 they're heading in that direction too, aren't they. 0:18:17.640 --> 0:18:22.159 Yeah, So in that case, the Supreme Court has decided 0:18:22.200 --> 0:18:26.720 a series of cases where it has held that if 0:18:27.000 --> 0:18:31.720 a state decides to provide some state funding for private 0:18:32.240 --> 0:18:37.000 non religious schools, it also has to provide funding to 0:18:37.160 --> 0:18:42.280 private religious schools. That to refuse to fund religious schools 0:18:42.320 --> 0:18:48.040 when it's funding secular schools is discrimination against religion. Of course, 0:18:48.160 --> 0:18:51.439 the problem with these rulings is to completely ignores that 0:18:51.480 --> 0:18:56.320 they're actually two religion clauses in the First Amendment, one 0:18:56.320 --> 0:19:01.119 of which is the Establishment Clause, which was long understood 0:19:01.119 --> 0:19:05.200 to prohibit direct government funding of religion. So that's the backdrop, 0:19:05.240 --> 0:19:08.760 and the case you're talking about is now there is 0:19:08.800 --> 0:19:11.960 an argument that not only does it discriminate against religion 0:19:12.320 --> 0:19:17.280 not to fund private religious schools, but it might discriminate 0:19:17.520 --> 0:19:21.600 against religion not to fund charter schools which are not 0:19:21.840 --> 0:19:25.520 entirely private, and so we may yet see a ruling 0:19:25.600 --> 0:19:30.800 where the Supreme Court says the free exercise clause requires 0:19:30.920 --> 0:19:36.480 the government to fund a public Christian school, which is 0:19:36.920 --> 0:19:41.199 again really turning the religion clauses on their head and 0:19:41.480 --> 0:19:45.159 completely ignoring the establishment clause. 0:19:46.040 --> 0:19:49.399 What has happened to the principle of separation of church 0:19:49.520 --> 0:19:52.200 and state. It seems to have vanished. 0:19:52.280 --> 0:19:56.600 Conservative Christians, particularly the Christian nationalists. They love that the 0:19:56.760 --> 0:20:01.000 United States is when it comes to in these days, 0:20:01.119 --> 0:20:06.280 I think what matters more than your particular denomination is 0:20:06.320 --> 0:20:10.080 whether you're conservative or not conservative. Some people might even 0:20:10.240 --> 0:20:13.880 argue that the real distinction are those who support Christian 0:20:13.960 --> 0:20:17.760 nationalism and those who don't. Probably people have heard of 0:20:17.800 --> 0:20:21.679 this term Christian nationalism. That's the idea. It's sort of 0:20:21.680 --> 0:20:25.320 the opposite of separation of church and state. It believes 0:20:25.400 --> 0:20:28.480 that the church and state should be one and that 0:20:28.560 --> 0:20:33.600 one should be espousing conservative Christian views and values. And 0:20:33.680 --> 0:20:36.439 I think we're seeing a lot of Supreme Court decisions 0:20:36.440 --> 0:20:40.720 that really facilitate the growth of Christian nationalism in the 0:20:40.800 --> 0:20:41.520 United States. 0:20:42.119 --> 0:20:46.520 The arguments over whether states with public charter schools are 0:20:46.720 --> 0:20:51.639 constitutionally required to approve and fund religious institutions. Will be 0:20:51.680 --> 0:20:54.879 heard on the final day of oral Arguments this term 0:20:54.960 --> 0:20:58.040 the last day of April, and it may be illuminating 0:20:58.119 --> 0:21:02.760 about the conservative justice is take on the separation between 0:21:03.080 --> 0:21:06.240 church and state, or maybe not. We shall see. Thanks 0:21:06.280 --> 0:21:10.520 so much, Caroline. That's Professor Caroline Malacorbin of the University 0:21:10.560 --> 0:21:13.640 of Miami Law School. Coming up next on the Bloomberg 0:21:13.720 --> 0:21:17.320 Law Show. The Trump administration clips the wings of the 0:21:17.440 --> 0:21:22.480 Migratory Bird Treaty Act, one of the nation's oldest environmental laws. 0:21:23.000 --> 0:21:27.440 I'm June Grosso when you're listening to Bloomberg. The Interior 0:21:27.480 --> 0:21:33.920 Department has suspended all Biden administration Interior Solicitor's memorandum opinions 0:21:34.200 --> 0:21:37.800 related to the environment to allow for the Trump administration 0:21:38.160 --> 0:21:42.400 to review them because they may conflict with Trump's political agenda. 0:21:43.240 --> 0:21:48.440 The suspensions include interiors interpretation of the Migratory Bird Treaty 0:21:48.480 --> 0:21:53.520 Act of nineteen eighteen, one of the country's oldest environmental laws, 0:21:53.920 --> 0:21:58.280 limits on offshore oil and gas leasing, the revocation of 0:21:58.359 --> 0:22:03.399 mineral leases for proposed coppermine, and Native American rights questions, 0:22:03.520 --> 0:22:07.000 among other issues. Joining me is Michael Gerard, a professor 0:22:07.000 --> 0:22:10.400 at Columbia Law School and the founder and faculty director 0:22:10.440 --> 0:22:14.000 of the Saban Center for Climate Change Law. Can you 0:22:14.119 --> 0:22:17.800 explain the significance of these memo opinions? 0:22:18.480 --> 0:22:21.040 Well, they're not legally binding, but they are the directions 0:22:21.119 --> 0:22:25.080 to the lawyers and personnel of the Interior Department how 0:22:25.160 --> 0:22:29.760 they should interpret various laws and regulations, So they're very significant. 0:22:30.520 --> 0:22:34.760 So the Interior Department's acting chief lawyer has suspended every 0:22:34.960 --> 0:22:41.400 legal opinion issued by his Biden administration predecessor, some twenty 0:22:41.800 --> 0:22:45.880 legal opinions. He said that this is a routine process. 0:22:46.200 --> 0:22:49.399 Are blanket suspensions like this a routine process. 0:22:49.920 --> 0:22:53.200 No, that won't usually revoke them or suspend them all 0:22:53.240 --> 0:22:56.880 at once. They usually take a more careful, deliberative process 0:22:56.960 --> 0:22:59.600 to do that. This was sort of a blanket suspension 0:22:59.600 --> 0:23:01.879 of all of memosk And are they doing. 0:23:01.640 --> 0:23:07.919 It because the Biden administration policy on environment is so 0:23:08.040 --> 0:23:10.679 different from the Trump administration's policy. 0:23:11.080 --> 0:23:12.680 Yes, I think that's a lot of it. That Trump 0:23:12.720 --> 0:23:16.040 administration has made it clear, as the President has said, 0:23:16.119 --> 0:23:19.439 drill baby, drill is their objective and they're trying to 0:23:19.520 --> 0:23:21.520 clear away anything that gets in the way of that. 0:23:21.680 --> 0:23:21.840 Yeah. 0:23:21.840 --> 0:23:23.800 I want to talk about some of the suspended opinions. 0:23:24.000 --> 0:23:29.080 One is the Biden administration's interpretation of the Migratory Bird 0:23:29.119 --> 0:23:34.600 Treaty Act, which is one of the nation's oldest environmental laws. 0:23:35.400 --> 0:23:38.160 This was a law that was passed by Congress around 0:23:38.920 --> 0:23:44.480 nineteen oh eight and it prohibits the killing of migratory 0:23:44.480 --> 0:23:48.280 birds basically. So traditionally, I mean, for a long time, 0:23:48.600 --> 0:23:51.960 it was a strict liability law that if you killed 0:23:51.960 --> 0:23:55.399 a migratory bird, whether you intended to or not, you 0:23:55.480 --> 0:23:59.879 were liable, potentially criminally liable. But the first Trump administration 0:24:00.400 --> 0:24:04.160 changed that to intentionally killing. That was struck down in court, 0:24:04.440 --> 0:24:07.520 that was reversed by Biden, and now the Trump administration 0:24:07.680 --> 0:24:10.520 is to move it back to say again that you're 0:24:10.560 --> 0:24:13.240 only liable if you intentionally kill a migratory bird. 0:24:14.040 --> 0:24:17.080 How much of an impact could that have on the 0:24:17.119 --> 0:24:19.040 migratory bird population. 0:24:19.800 --> 0:24:23.680 Well, the oil industry hates the rule because major oil 0:24:23.720 --> 0:24:25.560 spills kill a lot of birds and lead to a 0:24:25.600 --> 0:24:30.040 lot of liability. So after the Exxon Valdis disaster in 0:24:30.080 --> 0:24:34.119 Alaska and after the Deeporter Horizon spill in the Gulf 0:24:34.160 --> 0:24:39.200 of Mexico, those companies Exxon and BP were assessed fines 0:24:39.240 --> 0:24:42.760 of millions of dollars, and that industry has been trying 0:24:42.800 --> 0:24:45.560 to cut this out for a long time, and once 0:24:45.600 --> 0:24:48.040 again they're succeeding, at least for a while under the 0:24:48.040 --> 0:24:48.960 Trump administration. 0:24:49.400 --> 0:24:52.800 What are some of the other legal opinions that were 0:24:52.840 --> 0:24:55.639 suspended that you think are important. 0:24:55.920 --> 0:24:59.359 They're trying to revoke some of the limits on offshore 0:24:59.440 --> 0:25:04.439 oil gas trilling. They're modifying water rights at a Colorado 0:25:04.960 --> 0:25:09.479 National Park. They're changing various Native American rights questions. So 0:25:09.520 --> 0:25:11.320 it's a whole host of things. Some of them are 0:25:11.359 --> 0:25:14.480 fairly technical and innocuous, but others are really designed to 0:25:14.480 --> 0:25:17.120 make it easier to engage in fossil fuel extraction. 0:25:17.920 --> 0:25:23.359 With the development of alternative energy sources wind, solar, et cetera. 0:25:23.920 --> 0:25:27.800 How much can the oil and gas industry increase its output? 0:25:28.280 --> 0:25:29.720 Well, there are a couple of factors. One is what 0:25:29.840 --> 0:25:33.000 is the price of oil and gas. Most of the 0:25:33.040 --> 0:25:35.280 oil and gas extraction we have in the United States 0:25:35.280 --> 0:25:38.679 today is through fracking, and tracking is only economical if 0:25:38.760 --> 0:25:42.399 the price is high enough. The President has pledged to 0:25:42.560 --> 0:25:45.800 slash energy prices. It's not clear how he could do that, 0:25:45.920 --> 0:25:50.440 but if he did, it would render most fracking uneconomical. 0:25:50.640 --> 0:25:54.359 But what Trump is doing is to try to discourage 0:25:54.359 --> 0:25:58.840 renewable energy, especially wind. There's a real irony here because 0:25:58.880 --> 0:26:02.199 one of the major reas since Trump says that he 0:26:02.359 --> 0:26:07.240 wants to discourage wind turbance is because they can kill birds. 0:26:07.520 --> 0:26:09.399 But at the same time they're taking action to make 0:26:09.440 --> 0:26:13.440 it easier to kill birds through this modification to interpretation 0:26:13.560 --> 0:26:15.520 of the Migratory Bird Treaty Act. 0:26:16.119 --> 0:26:20.280 Are the birds killed mostly when there are environmental disasters 0:26:20.400 --> 0:26:22.440 or is it a daily thing. 0:26:23.280 --> 0:26:26.520 The worst incidents are when you have environmental disasters, but 0:26:26.600 --> 0:26:30.800 sometimes you have just an uncovered oil pond or oil 0:26:30.880 --> 0:26:33.000 tank and they land in it thinking its water and 0:26:33.040 --> 0:26:36.639 it's not and they die in the oil. So it 0:26:36.720 --> 0:26:39.240 happens on an ongoing basis, but just a whole lot 0:26:39.280 --> 0:26:41.440 worse when there's a huge oil spill. 0:26:41.920 --> 0:26:45.000 What's the goal of the Trump EPA. 0:26:46.080 --> 0:26:48.720 Well, they're talking about slashing the staff of the EPA, 0:26:49.200 --> 0:26:52.480 which would make it impossible to implement many of the 0:26:52.520 --> 0:26:55.640 programs that Congress has told it to implement, and make 0:26:55.680 --> 0:26:58.960 it impossible to enforce many of the laws that Congress 0:26:58.680 --> 0:27:03.359 has enacted. Their general view is that regulations are all 0:27:03.560 --> 0:27:06.800 cost and no benefit. That regulations get in the way 0:27:06.920 --> 0:27:09.960 of economic growth, and they want to do away with 0:27:10.440 --> 0:27:13.280 as many of them as possible. That's their view of EPA, 0:27:13.400 --> 0:27:15.520 and it seems to be their view in lots of 0:27:15.520 --> 0:27:17.639 different agencies Along those lines. 0:27:17.680 --> 0:27:22.240 The Trump administration has ended twenty billion dollars in funding 0:27:22.320 --> 0:27:28.159 for greenhouse gas reduction projects. Advocacy groups are suing because 0:27:28.760 --> 0:27:31.080 they said that those funds have to be used in 0:27:31.119 --> 0:27:33.440 the way that Congress set out. 0:27:33.680 --> 0:27:36.480 Well, just about everything that the Trump administration is doing 0:27:36.520 --> 0:27:40.080 these days is being challenged in court, and so far 0:27:40.760 --> 0:27:43.399 many of the federal judges have ruled what they're doing 0:27:43.640 --> 0:27:47.760 is illegal. I'm sure that the litigation campaign is going 0:27:47.800 --> 0:27:51.600 to continue during Trump one point zero. The Trump administration 0:27:52.440 --> 0:27:55.840 one only about thirty one percent of the laws, is 0:27:55.960 --> 0:27:59.760 challenging its major deregulatory actions. We'll see what happens this time. 0:28:00.400 --> 0:28:03.720