tv Washington Journal John Malcolm Elizabeth Wydra CSPAN October 4, 2021 10:58am-11:46am EDT
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eastern. >> next hour, a conversation on the supreme court. john malcolm is with the heritage foundation. a former deputy assistant attorney general in the bush administration from 2001 to 2004. elizabeth wydra, president of the constitutional accountability center. both of you this morning, thank you for joining us. guest: great to be with you. guest: thank you for having me. host: elizabeth, let's start with you. we hear about the upcoming -- how does this year compared to previous ones? guest: story -- sorry to overuse the term but if ever blockbuster was appropriate, this term was definitely going to be an enormous term when it comes to abortion rights, gun laws, issues related to religious instruction in school.
this is a term that is going to be incredibly momentous and when it comes to the context we are seeing right now with the public being very concerned about the legitimacy of the court, all eyes are going to be on the court and there is going to be a lot that will be worth watching. host: john malcolm, same question to you. guest: every term has its significant decisions but i agree that this certainly is big. a number are significant, including abortion rights and the second amendment and religious liberty, which i think we will talk about with respect to how the public feels about the court. i think the court ought to do what judges always ought to do which is to tune out all that noise and just rule according to the facts and the law in the case presented to them. host: do you think this term is shaped anyway by decisions made last term, talking about the
decision made in texas in the abortion law case. guest: i don't think so, referring to that case which doesn't mean mississippi is going to lose. i think mississippi is going to win their case. the texas abortion law stood on the way the law was framed and the parties that got sued. it is an unusual law in the sense that it makes clear that no state officials can enforce that law, it is only enforced by private civil lawsuits. when planned parenthood sued the state officials and state judges, the supreme court said you can soup people -- you have sued people who have no ability or role in enforcing this law. certainly in the background of the mississippi abortion case, and that is a significant case. host: we will talk about specifics in a second but miss wydra, considering how people
look at the court, what do you think? guest: it is obviously relevant to public opinion of the court when there is a ruling -- the texas ruling you're talking about which was given on the emergency docket, the shadow docket, that is certainly the term that was applied to it. i think when people wake up in the morning and there is a ruling that happened overnight or in this case, the supreme court didn't act and the texas law was able to go into effect and the court acted in a one-page procedural ruling that allows a law that is clearly unconstitutional to go into effect and functionally got abortion rights for one state in the country. people are going to start to feel very uneasy about what the court is doing. i think that is legitimate, that folks would be concerned about
these very woven into the fabric of our nation existence, the way that a generation of people like myself have grown up, assuming abortion rights are protected across the land. to wake up and find out that might not be true, people are going to feel uneasy and while the court certainly tries to tune out the news, it is clear that they don't and i don't think it is necessarily illegitimate for them to be concerned about their credit ability. they should always follow the law and the facts, that goes without saying. the credibility of the supreme court depends on the people having confidence in it. that is something that is important to the institution, important to it working properly. i think that we have seen the chief justice concerned about the credit ability of the court and wishing to keep the court thought of highly but public opinion polls show that
especially after that texas abortion ruling, the public has concerns. host: both guests joining us for about an hour. if you want to ask questions about the supreme court, as we talk about the specific cases it will hear this term, you are invited to call. (202)-748-8001 for republicans. (202)-748-8000 for democrats. independents, (202)-748-8002. you can text us as well at (202)-748-8003. let me get your thoughts from both of you on this specific case taking a look at abortion matters. elizabeth wydra, explained the case and the concerns you may have going into it as far as how the justices will respond. guest: mississippi has a 15 week abortion ban. that means you can exercise your right to an abortion prior to 15 weeks but not after. this directly contradicts roe v. wade and precedent in the
decades following that reaffirmed that right. and those decisions repeatedly say that states do not have a strong enough interest in regular eating abortion pre-viability -- regulating abortion pre-viability. this 15 week ban blatantly and intentionally runs up against roe v. wade so the case comes to the court with mississippi explicitly asking the court to overturn roe v. wade, to overturn and go against decades of precedent. we have seen from all the justices and their confirmation hearings or at various points in their prudence talk about the importance of what is called -- which is respect for precedent, especially precedent that has shown to be workable, that people have relied upon in their daily lives and in fashioning
plans and practices and decisions, so clearly the precedents are deeply embedded in the way that the majority of americans conceive of their individual rights and liberties. the majority of americans do not want roe overturned. the constitution clearly protects bodily autonomy, it protects equal citizenship in the idea that one commune equal citizen without making decisions about their own reproductive capacity doesn't seem to fit with the concept of equal citizenship. going into this decision, and i think the texas ruling allowing that six week abortion ban to go into effect, there are grave concerns that the court could sweep away those decades of precedent supporting the right to choose abortion. even though we have people
professing to follow the text of the constitution could sweep away the clear constitutional protections for the right to choose an abortion and people are very concerned. there will be intense interest leading up to and after the decision. host: let's hear from john malcolm. same question to you about the case the court will hear. guest: her statement that there is a clear constitutional right to an abortion is far from clear. roe has been on shaky ground since the day it was decided, even eminent liberal pro-choice scholars said that roe has no basis in the constitution itself. elizabeth says that a majority of americans favor abortion rights and have grown comfortable with it. abortion divides this country deeply, and about half the people in the country have never accepted roe v. wade and one of the factors that one considers
when deciding whether to uphold a case or not is whether or not it was egregiously decided on the basis of the constitution and whether it has been accepted. there is no constitutional right to an abortion, and the decision has never been accepted which is why there was a march for life and a women's march of about equal size all dealing with the issue of abortion. with respect to this particular case, i don't think the court took this case to affirm roe v. wade and planned parenthood versus casey. i think the question is going to be, are they going to cut into roe v. wade by saying that pre-viability restrictions on abortion can be constitutional, or are they going to carve out some new path or are they going to say roe v. wade and planned parenthood versus casey were wrongly decided at the time and has knots to the test of time and the issue now goes back to the states? guest: i want to be clear that the word equal as in terms of equal protection of the laws does indeed show up in the
constitution and the 14th amendment. not only under the sweeping term of equal protection but the constitution is not a grocery list. it speaks in sweeping terms about equality and liberty and if you think -- if you look at the things with which the committee drafted that language of concern, they were concerned out the ways in which the horrors of the institution of slavery denied people the right to do -- right to decide when and where and whether to have a family and preserving bodily autonomy and the right to make decisions about one's own body and so when you put that together with the precedents from the court which have been affirmed over time and have been more and more strongly grounded in constitutional language, then the court faces a very difficult test of whether it will go along with that precedent, this 14th mmn text and history and whether it will negative decision based more on political opposition.
guest: i have to respond to that. equal protections in the constitution, equal citizenship is not. at the time they were adopted, abortion was universally outlawed. nobody at the time that those provisions were ratified was thinking that it applied to a woman's right to kill an unborn child. guest: the state practice at the time is this an the 14th amend that was designed in many ways to stop us from the tory state practice but whether or not the drafters of the constitution were thinking about abortion, that is irrelevant when you have clear language. while the phrase equal citizenship does not apply in the consultation, i am shocked that you are arguing that equal citizenship is not protector the -- not protected in the constitution. those of us who are citizens of the united states are born equal
and equally american and entitled to the privileges and immunities thereof and that is deeply embedded in the constitution. many conservatives actually argue for that. host: i'm sure we'll get back to this topic throughout our our. let me bring in some calls. this is jean from maine, republican line. caller: hello. recently i have heard on the news that justice sotomayor had rejected a case that the appeals court brought about the vaccine mandate in new york city. i don't remember the particulars. apparently it was her jurisdiction, the area where the decisions of this court, and she decided that the court should not hear this case and yet when
the question of the fraud in pennsylvania came up and judge alito was in charge of that appeal, there was a vote about whether to hear the case or not and i am wondering why that is. why she could single handily make a decision and in judge alito's case, they had to hold a vote. host: mr. malcolm, do you want to start? guest: all of the justices are assigned different circuits to follow and emergency petitions come to them and they have the discretion to deny the request or to refer it to the full court to consider whether to hear the case or not. it doesn't mean that ultimately the issue involved whether in new york or the one that president biden wishes to impose, whether that will make it to the supreme court. it is whether or not it was
going to be done on an expedited emergency basis. i am quite sure that as these that -- as these vaccine mandates start to affect, one of these cases will make its way up to the supreme court. guest: exactly. this was about whether it was beyond the emergency docket or not but i agree that at least one if not more of the vaccine mandate cases will make its way to the supreme court. i agree with the caller's frustration that we don't know more about that and many other decisions that are made on the emergency shadow docket because there isn't this transparency that there is when you go through the merits docket and we have incredible important issues like the texas abortion case or the vaccine mandate or covid restrictions decided on the shadow docket last year, it is frustrated for those of us who are deeply affected by these
decisions but there is nothing untoward about what happened in that case, but i share the caller's frustration. host: why don't we have more transparency in those matters? miss wydra, you go first. guest: the idea that there is an emergency docket is totally legitimate and the court has had this emergency docket for a very long time. certainly some things must be considered when they come up on the emergency docket and that is not really the issue. i think the shadow docket we have seen an explosion of its use in more substantive ways on an increasing number of issues and that is where i think some of the frustration comes in. because it is on such a fast-moving pace, we don't have the full briefing, we don't have the full participation or other factors about how these laws or
policies might work on the ground or other beak -- other big legal considerations, and the lower courts can't often consider these issues in full because they are moving so quickly and you add to that that we don't have oral arguments and most of the time, the justices had in chamber arguments and then you don't see the way that the votes break down salon of the ways in which we way -- in -- is because somebody in the majority might write something but that is the only way we know the vote breakdown or we could guess because even some people who dissented might not note it. as the shadow docket is used for increasingly substantial rulings and increasingly substantial
shifts in the law are made on the shadow docket, this lack of transparency becomes a problem. host: mr. malcolm? guest: there is something sinister sounding about the shadow docket but every court in this country has a shadow docket. they all get emergency appeals filed to them, sometimes they will grant them and sometimes they will deny them. the supreme court has had the shadow docket for a long time because it gets lots of last-minute requests to stay execution's and death penalty cases. two things would happen fairly recently that have certainly increased the size of the number of cases dealt with on a neck but i do basis had a pandemic and a lot of governors and local officials issuing orders that affected things like church gatherings where a church was saying we are having a holiday and want to have an in-person service and the governor is stopping us, please let us do this because it violates our religious liberty rights.
the only way to have that happen was to come up to the court on an emergency basis. another thing that happened in the trump ministry she was you had single district court judges issuing nationwide injunctions preventing the government from implementing a policy. if you didn't want to have it, -- billy way to get relief from that was to go to the supreme court and have them stop this. host: let's hear from john in indiana, democrats line. caller: if the shoe fits, wear it. i just want to say, i don't think this court represents a majority of americans we know full well that women's rights are being curtailed.
gun rights will be expanded. corporate rights will be expanded. for the layperson like myself, how does this happen? i want to comment on two cases from last term that show in granular detail how the injustices play out, versus what they had to show in california case with the disclosure of -- the justices sort of pick and choose and that sounds very technical but i think this is only granular level but this is how these injustices play out. host: mr. malcolm, do you want to start? guest: it is a judge's job to slavishly apply the law. they are not supposed to pay attention to whether or not their opinions conform to current popular opinions.
in many ways, the constitution and some statutes are designed to protect unpopular rights and popularity of particular issues can wax and wane depending on the times. the two cases that he mentioned, they were very different cases. one was an interpretation of the voting rights act and whether or not arizona had two particular policies, vote harvesting, vote trafficking and out of precinct policies, whether or not those were in conformance with the voting rights act. the other one had to do with whether or not there was a chilling effect by having to produce your major donors to the california attorney general. they had a terrible history in terms of leaks out of that office of confidential information being made publicly disclosed. the naacp faced the same issue back in the 50's when alabama
wanted them to disclose their donors and every but he knew what that was going to be about, it was to harass and intimidate their donors and have a chilling effect so people would no longer affiliate themselves with the naacp and that is except the what happened in california. host: elizabeth wydra? guest: i think part of the problem is when you have decisions like benefit -- the majority was making its ruling but it was essentially a law free zone, but i think that what the caller is getting at is the supreme court is in many ways intended to be a counter majority institution, and the hope is that that would operate to ensure that the rights of marginalized people who don't have political power, people who do not have the means to
influence the political process, people who are vulnerable would be protected by the court. it hasn't really worked out that way unfortunately in a lot of moments in history that is certainly the hope. the problem with the counter majority institution is when the people start to lose faith in it and that is why it is not just political pressure or whatever on the court. the issue of the credibly of the court as a public -- and the public's faith in israel because when you have a large counter majority unelected body, it relies on being seen as a legitimate carrier of justice and so when the public starts to feel that that is not what the court is doing, then that public faith erodes and we have a real problem.
the way the court hopefully can fix that is by issuing rulings that follow the law and the constitution more closely and as i said, the hope that the court would be doing so in order to protect the rights of the marginalized and the equal rights of all whether we are rich or poor, that is in the constitution and the constitution particularly has been amended over our nations history and has become more focused on that equality and equal protection of the law and has become more inclusive through amendments that have been passed over time and when you see the court not matching up with that constitutional arc of progress, than that public faith can come into crisis. host: two guests joining us for this conversation. elizabeth wydra is the president of the constitutional accountability center. john malcolm joining us from the heritage foundation, vice president of the institute for
the constitutional government. dave from north carolina, republican line. caller: thank you for taking my call. i'm just wondering, is there anything in the constitution about immigration, and is there anything that is going to come up in this session, where they could rule on something to shut that border down? just in this year, there is going to be as many people crossing the border as we have in three states, and if it stays the same, there will be as mini people as we have in 10 states. city 3% of the people crossing over go in the system. host: dave in north carolina asking about immigration matters. elizabeth wydra, anything on
this docket? guest: i think we will likely see some important immigration cases coming before the court. there was a shadow docket ruling on the migrant protocol process that is more commonly known as the remaining mexico policy for a lot -- for asylum-seekers. there was a single district court judge as john mentioned that decided the bite in the administration's refusal to continue the trump policy that was deemed to be harmful to asylum-seekers, the district judge required the biden administration reinstituted that policy, and the courts did not stay that decision, so that is a very well minded but we could see some other cases stemming
from the issue of immigration that president biden has taken a very different approach from the way the president trump treated that issue. there are changes in the laws and just as we saw the immigration decisions of president trump being litigated through the courts, we are already seeing that with the biden administration's choices as well. host: mr. malcolm? guest: that is right. the case very quickly made its way to the supreme court and there will be immigration cases on the docket. hard to say exactly what they will be. the direct answer to the question is that congress has given primary authority over immigration and i know president biden is really -- is trying to reaffirm to the ministry to procedures act, the daca program. i'm sure there will be some major immigration case that will make its way up to the court this term. host: there is a case dealing with gun rights on this docket.
new york state rifle and pistol association versus -- would you mind setting this up for us? guest: new york has -- the supreme court in 2008 in the heller decision said that the right to keep and bear arms is an individual right and that you have a right to keep and bear arms in your home and it did not issue an opinion beyond that. two years later in 2010, in a case named the mcdonald case, it said this was a fundamental right that applied to the states and gun rights advocates have been very frustrated that the court has not taken up a case since then. one of the reasons is that most of the states, over 40 of them allow people to get a concealed carry permit. some states even have open carry permits so there is no one to challenge those laws. new york is not one of the states. new york does not allow open carry and in theory allows you to can -- get a concealed carry
permit but they almost never get issued. they have a rule that says you have to have a special purpose to get a concealed carry permit which essentially means you have to have an individualized showing that you are in danger beyond the general defense rights of the rest of the public, and order to get such a permit. to my mind, this sort of flips the constitutional presumption. the secondment has a right to keep and bear arms, bearing arms implies outside the home. you get to exercise that constitutional right a list the government can present a strong reason why you shouldn't be allowed to exercise that constitutional right with respect to the second amendment and the new york law it is flipped, you don't get exercise the constitutional right unless you can come along and present a very strong reason as to why you should be allowed to exercise that constitutional right.
you can imagine what this would be like if you had to make a special showing to some government bureaucrat before you would be allowed to make a speech. the question is, is new york's law unconstitutional and i believe the court is going to hold that it is. host: miss wydra, your take on the case? guest: i think a lot will turn on the operation of the law and the way it actually works. the supreme court in the heller decision first articulate of the constitutional rights as an individual to have a gun within the home. that made clear that there have been, throughout our history, legitimate constitutional restrictions on that right. restrictions about carrying firearms in different places, who may have access to a firearm and the manner in which it can be used.
all of these regulations have been considered constitutional and the court did not disturb many state laws that have been challenged, but now that the court has taken this case, i think we are going to see is a close look at the way this law operates and it is not a complete ban on the use of force. as john mentioned, there is this requirement to show proper because for why you want to concealed carry a weapon outside the home and even two of the individual challengers here have their permits, had them approved in certain contexts, just not in the complete unlimited context they wanted. for example, they argued did the gun for target practice or hunting, that can be approved and it was approved one of the challengers here, or if you show through your proper cause statement that you have a
specific need to have a concealed gun at your workplace, which was again approved for one of the challengers at their workplace. that is the way the law operates and i think the court is going to grapple with given that it has established this individual right under heller, does a regulation like new york state's which has been in place since 1911, does it work within that sensitive context for determining when a right is being completely obliterate it by the regulation or when that regulation is appropriately taking into account the context. we are talking about guns and there is an understandable interest of the state in public safety. the court is going to be doing that balancing and it is going to look closely at the way that the law operates. i don't think this is going to be the end of regulation -- of litigation over regulation of guns.
i think this could just be the beginning of a series of cases. guest: if i could very quickly respond. i agree with elizabeth. obviously if you are a can -- if you are a convicted felon, or suffering from a mental disability, i don't think these laws -- i don't thing this up in court is going to hold that a lauper having those types of people from possessing a gun would be unconstitutional. the two people involved here have already passed background checks and they had been issued permits to carry long guns for target practice and hunting and they want to be able -- they have taken gun safety courses and they have proven they are good character and that they know how to use a gun and they just want to carry a gun for self-defense purposes and they have been deprived of that because they haven't shown some special reason why they in particular need to carry that gun. that flips the perception of a constitutional right. host: let's go to chicago. kathleen on the democrats line. caller: good morning.
this is just for mr. malcolm. where in the constitution does it say one man has the right to kill another man or woman? i thought pro-life means from the cradle to the grave. you all are so concerned about what is going on in a woman's body, but when that child gets outside that woman's body, whether that child eats, sleeps or has a good education, you don't care. you don't mind sending them to war. that is abortion, too. i don't hear you complaining about something -- about sending some at his child to fight and die. if you are so concerned about what is in somebody's body, why are you concerned about once that child gets outside that body? this is for mr. malcolm. would you please answer that question? guest: i am very concerned about
what happens to people once they are born. he said from cradle-to-grave and i might expand that from conception to grave. this is an unborn child and if you don't believe that, that is fine. any people do and if you want to talk about the due process rights of people and equal protection rights of people, there are many people who believe that the unborn should be included in that. i am certainly not in favor of sending people off to war. war is messy and people die. it is however unfortunately in these tumultuous times throughout history occasionally necessary and i am very grateful for the people who volunteer for that service. they don't want to die but the other one to preserve our freedoms and keep us safe. host: miss wydra, did you want to add anything to that? guest: i think that obviously the idea of having the right to choose on a matter so personal, something that is a decision
that a person and their doctor making that decision together, that is a very personal right and it has been protected by the supreme court as something that is both -- her opinions for the court, something that is rooted in the idea that people cannot approach the idea of equality if they cannot control those basic positions. host: a specific question for you, miss wydra, off of twitter. do you foresee any of the judges recusing on this term? guest: that is an interesting question. not on any of the big cases we just talked about. there are a lot of interesting
issues related to recusal and ethics in the supreme court. the lower court judges have a code of ethics and recusal practices that are different than the supreme court. in many cases, the supreme court just kind of self polices on those grounds and there is an interesting wall street journal investigation into lower court judges who should have recused because of a conflict of interest in a case and did not and mostly that was financial interest and given that they have a stricter policy, i think it is interesting to think about how that would apply to the supreme court. we don't know of any reason why justices recuse in these particular cases that we are talking about this term, but i think a lot of times the public's focus on the supreme court substantive rulings but there are issues of process and ethical practices that i think
warrant more attention in the supreme court. host: mr. malcolm, your response as well? guest: i don't have anything particular to add. justice sotomayor made a statement that she is pro-choice and that is hardly a surprised anybody. if i were her, i might let it made the statements but i certainly don't see it as a basis for her to recuse from the case and i can't think of any reason beyond perhaps a justice having a financial investment in some company that has a case before the court or relative of theirs is arguing the case before the court. i don't see that any -- in any of the major cases. other than that, i have nothing to add. host: let's hear from kevin in california, independent line. caller: good morning. the concern i have and wanted to raise is that a lot of the arguments for reading abortion
rights into the constitution and roe v. wade itself are anti-scientific or at least inconsistent with modern medicine. for instance, the notion that abortion rights are encompassed by bodily autonomy, it is inconsistent with science because we know that abortion prevents -- ending the life of a genetically distinct individual. it is not the body of the mother, it is a genetically distinct individual. that argument is just anti-scientific. with respect to roe, the court decided that viability of the fetus was when the states right to protect the life kicked in and at that point, and the decision, it was around six months. now with modern medicine, the
viability is much much earlier than that. even accepting the rationale of roe, it does not hold up under modern medicine. the decision would have to be reevaluated every time there is new medical advances and the final thing is, the texas law probably went too far in not having the rate or incessant section -- rate or incessant exception but at least having the heartbeat test, when the state could prevent the abortion, at least that is an objective and sustainable standard or test in contrast to roe, where viability changes over time. host: that is kevin in san diego. miss wydra, go ahead and start. guest: as a person who has given birth to a child, i am not sure
how you get to the idea that the parents body is not involved in carrying a child to term. i'm a little confused about that. i think your point about science -- the court has grounded its protection of abortion rights not in science but in the constitutional right to liberty and equality of the person who is going to be making those decisions about their reproductive capacity and about whether they will or will not carry a child to term. that is what we are talking about. the idea of viability that people criticized in roe, the court has affirmed and reaffirmed the general principle that the right to choose protected enrole -- protected
in roe is protected in the constitution because of the intrinsic nature of that type of decision, and the right to choose in that context, the right to choose whether or not you will carry a child to term. that is an individual decision that is clearly linked to bodily autonomy, to the right to decide one's own fate, one's own destiny. host: mr. malcolm? guest: roe has always been perceived by a large number of people as being a political decision in constitutional garb. of course a woman's body is involved in the decision to have an abortion, but so is the separate entity of the unborn child that she is carrying. when you are a brand-new baby, you rely on the protection of the mother, and if you are out
of lee, you rely on the protection of somebody. those people are clearly alive as well. they are dependent on somebody in order to stay alive. the l.a. difference is that in the case of an unborn child, it is only the mother who can protect that child whereas she can turn over a child or have a caregiver care for an elderly or infirmed person. there are two bodily interests involved and one is the body of the unborn child relies on that mother for life up to the time of viability. host: one more case i want to bring into the conversation dealing with religious liberty. especially in context of schools. mr. malcolm -- either of you can start as far as setting up this case and its contours. guest: i'll jump in. this is a case coming out of maine. it is unusual in that they have a lot of districts that do not have public schools so they have
a tuition assistance program for those people living in districts without public schools where they will give somebody money and say send your kid where you want whether it's a public district in a joint -- public school in a joint district but it cannot be a sectarian school. that has been challenged on equal protection and free exercise grounds by two parents, one of whom sent their child to a sectarian school and thinks they were entitled to that money, one of whom sent them to a secular school but said that their free exercise rights were deprived. over the last three terms, the spring court has decided two very important cases, the trinity lutheran case and the espinoza case saying that state programs cannot discriminate against religiously affiliated institutions on the basis of their status as able to this institution. -- their status as a religiously affiliated institution.
maine -- they rely on an old case out of 2004 called lock the dv -- lock v. davie. last year, the espinoza case, the chief justice nodded beef -- nodded towards it. other justices say this distinction between status and use is dubious at best and the first amendment protect the free exercise of religion and the question is not whether the majority of the justices agree that this distinction makes no sense. i think they will, but it will be a close case. host: elizabeth wydra? guest: i think a lot of this case will turn on the kind of unique facts on the ground of the way this program works. maine is fairly unique because of its sparsely popular did parts of the state.
there are not public schools in every part of the state, so they have this program in which private schools are given state funds to provide the equivalent of public education. that is where the concern comes from, and giving state funds to schools that actively teach religious doctrine, and that is why it is argued. religious schools do receive funding but they try to make a distinction between those schools that would provide the equivalent of a public education to not include religious doctrine, and those that they feel are sectarian or there is the implication of religious doctrine. i think the court is trying to find its way on these cases and the constitution steps up -- sets up this push and pull
between the state not being able to establish and the protections of the free exercise, and so in some ways, and there is a letter from thomas jefferson that a lot of folks talk about when they talk about the wall between church and state. that wall is often there to protect religious exercise from the state becoming too involved in their operation and the regardless of that, all these types of questions, the issue here will really be on the kind of tension because the state is sayingoo