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5th Circuit Rules 10 Comandments Not Unconstitutional · Conversations: Special Guests with Preston Scott

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  Speaker 1: Welcome to the third hour of the Morning Show with
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  Speaker 1: Preston Scott. Great to be with you this morning. As always,
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  Speaker 1: Jose's over there in Studio one A. I am here
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  Speaker 1: in Studio one B. Zack Smith is a senior legal Fellow,
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  Speaker 1: manager of the Supreme Court and Appellate Advocacy Program at
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  Speaker 1: the Heritage Foundation, frequent guest, friend of the program and
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  Speaker 1: a friend of mine. Zach, Good to have you back
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  Speaker 1: on the show. How are you, sir, Well, I'm doing well.
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  Speaker 2: Thanks so much for having me on this morning.
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  Speaker 1: Of course, you wrote something that I think slid by
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  Speaker 1: some folks that in this audience they need to know
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  Speaker 1: about this because I think it's a very encouraging ruling
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  Speaker 1: at a time when we're not getting a whole lot
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  Speaker 1: of them. We're getting some. But tell us about this
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  Speaker 1: story about the ruling of the Fifth Circuit of the
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  Speaker 1: Court of Appeals.
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  Speaker 2: Yeah, So the Fifth Circuit overseas Texas, Louisiana, Mississippi, and
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  Speaker 2: essentially they were asked recently to rule on whether Texas's
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  Speaker 2: new law requiring schools to post the Ten Commandments, whether
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  Speaker 2: that violated the Constitution. Now, I think it's important to
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  Speaker 2: understand preston this law that Texas passed SB ten. It
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  Speaker 2: provides simply that every school in the state should post
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  Speaker 2: the Ten Commandments, no commentary, no other items attached to it,
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  Speaker 2: just the text of the Ten Commandments. And of course
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  Speaker 2: some folks challenged that, they said it violated the First Amendment,
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  Speaker 2: it violated the establishment clause, it violated the free exercise clause.
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  Speaker 2: But in a very masterful opinion, Judge Kyle Duncan on
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  Speaker 2: the Fifth Circuit explained why that just wasn't so, and
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  Speaker 2: why this Texas law could in fact go into effect.
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  Speaker 1: How did he come to that opinion, And was it
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  Speaker 1: buttressed by something recently done in the US Supreme Court
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  Speaker 1: that kind of allows the circuit courts to flex a
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  Speaker 1: little muscle on these issues.
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  Speaker 2: Yeah, absolutely so. I think to understand why why discipinion
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  Speaker 2: is so important, why it's such a watershed moment, we
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  Speaker 2: have to go back to the nineteen seventies. In the
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  Speaker 2: nineteen seventies to the US Supreme Court put forward a
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  Speaker 2: very problematic case called Women Versus Kurtzman, and essentially this
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  Speaker 2: case led to many of the problematic rulings that said
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  Speaker 2: you couldn't display the Ten Commandments it led to challenges
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  Speaker 2: to prayer in school. It basically said that the government
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  Speaker 2: couldn't do anything that would excessively entangle itself in religion. Now,
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  Speaker 2: the problem with that preston is that's not how the
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  Speaker 2: framers of our Constitution understood the First Amendment. If you
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  Speaker 2: go back and look, Thomas Jefferson held worship services in
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  Speaker 2: the US Capital, George Washington, John Adams, every president for
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  Speaker 2: the first decades of our country allowed some form of
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  Speaker 2: public expression of faith to take place on US government grounds,
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  Speaker 2: on US property, and that was never seen as a
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  Speaker 2: violation of the Establishment Clause. But starting in the sixties
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  Speaker 2: and seventies, the US Supreme Court really warped the Establishment
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  Speaker 2: Clause case law. And fortunately the US Supreme Court several
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  Speaker 2: years ago, in the Kennedy versus Brimerdon School District case.
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  Speaker 2: You may remember, it's the coach Kennedy case. You're going
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  Speaker 2: to prey on the field before football games. The US
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  Speaker 2: Supreme Court says, look, the Lemen case, that line of
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  Speaker 2: cases that stem from it, that's bad case. Lawns not
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  Speaker 2: how the framers would have understood this. We are going
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  Speaker 2: to overturn Lemen, We're going to reject that precedent, and
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  Speaker 2: going forward, we're going to look at the history and
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  Speaker 2: tradition of our country to understand what the First Amendment
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  Speaker 2: requires or what the First Amendment would prohibit. And so
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  Speaker 2: essentially what the Fifth Circuit did in this case, in
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  Speaker 2: this case involving the Ten Commandments, they just expanded on
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  Speaker 2: that history and tradition test that the Supreme Court first
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  Speaker 2: readopted in the Coach Kennedy case.
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  Speaker 1: Zach, Is this the first significant case that is buttressed
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  Speaker 1: by the Supreme Court ruling in Kennedy versus Bremerton.
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  Speaker 2: Well, there's been a line of cases preston, and essentially
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  Speaker 2: what the lower federal courts are having to do, they're
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  Speaker 2: having to go back and address situations that the Supreme
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  Speaker 2: Court had previously said were unconstitutional, you know, under the
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  Speaker 2: limit test, because governments were trying to avoid an excessive
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  Speaker 2: tanglement with religion, because they had to show some secular
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  Speaker 2: purpose to displaying items like the Ten Commandments. That's why
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  Speaker 2: you had really absurd situations where you had city halls
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  Speaker 2: displaying the Ten Commandments or Nativity seeings alongside Snoopy or
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  Speaker 2: Frosty the Snowman. Are these other types of secular displays
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  Speaker 2: because the government said you couldn't have a solely religious expression.
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  Speaker 2: And so again this is one of the first major
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  Speaker 2: lower federal court cases where essentially the lower federal courts
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  Speaker 2: are going back looking at some of those situations and
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  Speaker 2: saying no, no, no, no. At the the framers of our
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  Speaker 2: constitution would have understood this type of display to be
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  Speaker 2: perfectly permissible, Zach.
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  Speaker 1: I have long argued, because of course I stayed in
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  Speaker 1: a holiday in express and I am a constitutional scholar
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  Speaker 1: as a result of it, I have long argued that
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  Speaker 1: whether it's on our currency coin, that acknowledging a faith
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  Speaker 1: does not establish one. That acknowledging the Ten Commandments does
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  Speaker 1: not establish a church or a religion, It merely acknowledges one.
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  Speaker 1: Is that an argument that is just too simple and
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  Speaker 1: too shallow.
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  Speaker 2: Well, preston with your holiday in express day. I would
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  Speaker 2: place you on a Court of Appeals over some of
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  Speaker 2: the sitting federal judges right now, because I think that
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  Speaker 2: understanding is much much better. And in fact, if you
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  Speaker 2: go and look at the Fifth Circuit opinion, they say
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  Speaker 2: there are six hallmarks that were typically understood at the
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  Speaker 2: founding to establish in a religion on the work of
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  Speaker 2: Professor Michael McConnell from Stanford University. And unless you're being
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  Speaker 2: coerced to attend church, unless you're being coerced to forcibly
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  Speaker 2: provide tax dollars to a church, things of that nature.
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  Speaker 2: The Fifth Circus said, that's not If those types of
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  Speaker 2: things aren't present, then that that action isn't enough to
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  Speaker 2: establish a religion.
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  Speaker 1: Those six hallmarks that you note, and I love that,
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  Speaker 1: I love that you dug that out. Are those part
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  Speaker 1: of the ruling, the opinion that was written. And do
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  Speaker 1: they now establish a bit of a more clear cut
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  Speaker 1: precedent for subsequent rulings by courts, maybe even outside the
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  Speaker 1: Fifth Circuit.
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  Speaker 2: Yes, they do. It provides guideposts for courts to look
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  Speaker 2: at landmarks to help courts untangle essentially what would have
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  Speaker 2: been permitted what would have been prohibited at the founding
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  Speaker 2: at the time our Constitution was adopted. Now, I think
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  Speaker 2: it's important to emphasize, though, press and this is one
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  Speaker 2: Court of Appeals, although other Court of Appeals have issued
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  Speaker 2: similar types of rulings looking at these hallmarks as well.
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  Speaker 2: But this is an issue that could eventually make its
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  Speaker 2: way back up to the US Supreme Court. But I
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  Speaker 2: think what this decision in particular has done has really
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  Speaker 2: made clear that many of those old decisions, those post
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  Speaker 2: limited decisions with that very flawed rationale thatout those decisions
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  Speaker 2: now have to be revisited on a case by case
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  Speaker 2: basis as this new standard they should apply.
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  Speaker 1: I'm curious are there groups of i'll say activists on
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  Speaker 1: the right side of this that are going to now
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  Speaker 1: start picking at those cases and try to find means
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  Speaker 1: to overturn some of those previous rulings.
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  Speaker 2: Well, if by activists you mean every day citizens who
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  Speaker 2: want to do things like prey in certain settings or
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  Speaker 2: display signs of their faith, then yes, certainly. And keep
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  Speaker 2: in mind they're way this case game before the court.
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  Speaker 2: The state of Texas, Texas pass SB ten, which required
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  Speaker 2: schools to post the text of the Ten Commandments. And
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  Speaker 2: so essentially it was folks on the left who challenged
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  Speaker 2: that Texas law that caused this case to come before
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  Speaker 2: the Fifth Circuit ultimately, and so you'll see these cases
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  Speaker 2: coming up through a variety of mechanisms. But I think
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  Speaker 2: the takeaway here, Preston, is that public displays of faith,
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  Speaker 2: public eight acknowledgments of faith. As you said, those aren't
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  Speaker 2: prohibited by the Constitution, and the framers, those who adopted
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  Speaker 2: our Constitution, would never have understood it to prohibit those
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  Speaker 2: types of public acknowledgments.
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  Speaker 1: All right, last question for Zach, and then I'll let
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  Speaker 1: you go. I'm just curious inside the Fifth Circuit you said,
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  Speaker 1: we're talking Texas, Louisiana, and Mississippi. Right, is you mentioned
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  Speaker 1: that this could find its way back to the Supreme Court?
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  Speaker 1: It could? Does it? Is it likely to go the
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  Speaker 1: other way? Will this ruling now impact federal that we
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  Speaker 1: have seen all too often district judges try to expand
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  Speaker 1: their powers beyond their boundaries. Does this provide them a guidepost,
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  Speaker 1: whether they like it or not.
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  Speaker 2: Well, it certainly provides a guidepost. And I think any
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  Speaker 2: judge or across the country would do well to look
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  Speaker 2: at this opinion for guidance. Because this was an opinion
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  Speaker 2: of the Fifth Circuit only governing those three states that
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  Speaker 2: you mentioned. It will only bind the judges within those circuits.
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  Speaker 2: These judges in Texas, Louisiana, Mississippi, they have to follow
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  Speaker 2: this decision. Judges in other circuits don't have to follow it.
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  Speaker 2: It's not technically binding. But again, they would do well
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  Speaker 2: to look at it for advice and guidance as they
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  Speaker 2: too are confronting these types of issues.
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  Speaker 1: Very good to visit with you again, Zach. Thanks for
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  Speaker 1: the time this morning.
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  Speaker 2: Of course thanks for having me on