The information provided on this program is for informational and entertainment purposes only and does not constitute legal advice.
Accessing or viewing this information does not create an attorney-client relationship.
Every case is unique and you should consult with a licensed attorney in your jurisdiction before taking any action.
Welcome to the noon hour of this great perch we have here.
Iowa Law Talk on KXEL.
Saturday noon time, and we are in the deep recesses of big 10 season right now.
The Hawkeyes will be looking to enter that college football playoff picture.
Guys, we've got the great Nicholas Cratelli, J.D.
Aspire, Joe Piper, J.D.
Aspire, Nick, also an English barrister, the first American attorney to be granted such privileges and rights in a century and a half.
Nick with offices in
Des Moines, New York City, and London.
Joe Piper, The Wizard at Ag and Business Legal Strategies and Uncommon Law Firm in Hiawatha, right outside of Sea Rapids, next to my beloved Mary and I. We are listening to this great blowtorch, 1540 and 100.5 FM Ottawa Lou and Sea Rapids, North America's original 50,000 watt clear channel blowtorch.
We welcome you, tell your friends, listen live, just get on their browser and type in KXEL.
Listen live Iowa Law Talk and if you want to send us a question or comment write us email us at Iowa Law Talk at KXEL.com You can catch the podcasts by going to your browser and typing in Iowa Law Talk KXEL Podcast and it will take you to SoundCloud.
You can also go directly to KXEL.com and click the podcast tab.
Got a lot to talk about right out of the gate.
Let's roll, Nicholas!
Take it away!
Okay, well our listeners will remember that last week we were talking about an Iowa Supreme Court decision about Dort University and the issue was whether or not a student's refusal to take the COVID vaccine was as a result of a severely or a seriously held religious belief.
Correct.
And that the justices of the Supreme Court, you know, analyzed whether or not the
religious belief was seriously held.
And in that decision made a determination that it was not.
Okay, and it was a very well-written opinion.
I mean, and the due process of law was appalled.
Everyone had an opportunity to weigh in on the case, put their evidence in and so forth.
And I can't really disagree with the court's finding on that.
In fact, I thought the decision was very, very well written and the logic was impeccable.
Little did I know that it was going to be a canary in a coal mine.
because after that decision was entered down, this week two more decisions came down on courts dealing with similar religious based beliefs and how the state deals with them.
So without further ado, let's talk about Satan.
And after we're done talking about Satan, we'll talk about God.
And here we are having a battle between, you know, the Prince of Darkness and
you know, the giver of light.
So let's talk about the prince first.
This decision came down on the 2nd of November, and it dealt with the satanic temple here in Des Moines.
Now, you folks will recall that a year or so ago, the satanic temple wanted to put up a display of its deities, or its satans, whatever they call them, Krampus, at the capital.
And they were denied.
There was quite a bit of controversy about it.
There was even some violence with respect to somebody that came up and took their display and damaged it.
But it was in the news all the time.
Well, of course, needless to say, this is going to make it to the court system.
And it did.
In this case, it made it over to the federal court system here in Des Moines.
And the issue in that case was whether or not the state was wrong with regard to barring the satanic temple people from actually displaying their situation.
The name of the case was Satanic Temple versus Campbell.
Campbell was the director, I think, of the Iowa Department of Administrative Services.
And the question is whether or not the Satanists have a First Amendment freedom of religion right
to put up their holiday event presents, similar to the Christmas tree, similar to menorah, similar to things of that nature.
Joe, what was your view of that?
It's a tough one, because remember last week I said, how is when we were looking at the case we discussed last week, and I said, well, what about somebody who worshiped Satan?
Little did we know, right?
Yeah, little did we know that that was going to happen.
So now we're looking at this.
And we're looking at it through a couple of different things.
The First Amendment, the right to free speech, and then there's the Freedom from Religious stuff in here.
So two aspects of the First Amendment, folks.
Right.
Free speech and freedom
of religion.
And that comes into a real problem here because we're sitting here saying we have a right to free speech and we have a right to practice our religion.
There also are different things that have been codified in there and talking about there are some federal statutes that deal with this and also some state statutes that deal with the type of religion and other things that you can talk about.
So the application early there's a preliminary injunction that's been granted now.
The preliminary injunctions has been granted by
federal district judge Stephanie Rose in Des Moines and she says that there's a likelihood that the satanic temple will be successful in its lawsuit seeking saying that its rights have been abrogated or impringed upon.
So that means that come December 12th there will be a satanic display in the rotunda of the capital.
You know Joe what I found interesting in this is that
It's the way that Chief Judge Rose worked through the analysis.
For example, the department cited six principal reasons why it barred this.
And she looked at it and said, these are insignificant.
Let's take a look at it.
Number one, the department asserted concern for children.
It said the children would be afraid, the children would be hung armed, et cetera.
So the question is, does the department have a right
to say no, you can't do that because children would be hurt or the members of the public would be hurt by it and I think basically what I read into the decision is the answer is yes if you can if you have proof of it you know for example they were saying children might be frightened by the appearance
and folklore associated with Krampus, who's the head satanist.
Participants carrying sticks as part of their costumes could potentially injure children.
The court looked into that and said, there's no proof of this.
You make the allegation, government, that this is the reason you are going to not allow this to occur, but there's no proof to back it up.
For example,
She got into folklore and she explained that folklore involving taunishment has always been a part of children's literature.
For example, fairy tales, Snow White, Cinderella, Hansel and Gretel, and so forth.
So how does that differ from what's going on here?
Well, I thought that was an ingenious analysis, but certainly one that should have been dealt with.
If you're going to prohibit this and you know the lawsuit's coming, you don't have to be a genius to figure that out.
So at least come up with some evidence as to why this was particularly harmful.
So I looked at that first point and saw there was a failure of proof.
The other thing that concerned me was when the judge drilled down into, well, why are you doing this?
Where's your standard?
How are you judging it?
And there was no standard.
It was all subjective.
I believe this.
It was my personal expression based on personal reactions.
Well, that's not evidence.
So in that situation, I think that at least on those first two elements, the state failed to provide adequate proof or inadequate, verify its analysis with respect to it.
That kind of concern me is if you're going to do this, have a reason for it.
The other thing she said is that there was some serious concerns about viewpoint discrimination.
And that is that you've got Christmas trees, you've got nativity scenes, you've got menorahs, etc.
Now, last week when we talked about this, we talked about the fact that the US Supreme Court dealt with governments discriminating and prohibiting Christmas trees and menorah.
And it held both in no situation that those are not only religious
iconography but they're also cultural and it's it said yeah you can put a christmas tree up in a government building you put a menorah up in a government building okay nativity scenes other things of that nature may be a little bit different but where was the analysis with respect to crampus and the satanic temple
well nick nick let me just if i can weigh in here i really have problems with this uh crampus decision uh because as the court has evolved from the lemon test
and Gorsuch most recently in his opinion in Kennedy versus Bremerton school district, they basically are going to quote, they emphasize the reference to historical practices and understandings.
This has been the bulwark for allowing menorahs and nativity displays because they've been woven into the fabric, the culture, the national holiday, the decor, the retail.
This
Krampus is a recent affectation done to some extent to thumb, put a thumb in the eye of those who
our believers in what we would call traditional religion.
So I do have some issues with this opinion, and I'm not on all fours with it, to be honest with you.
It's not how it
would be.
But John, let me challenge you on this.
You
say,
well, this Krampus thing was made to put a thumb in their eye.
Well, that's very subjective, John.
OK, they wouldn't say that.
They would at all.
They say, hey, you have your Christmas tree.
You have your menorah.
We have our Krampus.
Why can't we have that?
Just because you don't like it.
that's opinion-based discrimination and that's what didn't allow.
I agree with you personally,
but I think if you go to the foundations of some of these groups and their intent to maybe aggravate or to denigrate or to insult, I think there's a body
of evidence there that is worth exploring.
That's how I would characterize it.
Well, the good thing, good Joe, what do you think of that?
Well,
you start thinking about this and you're talking about Krampus and maybe you talk about Christ and then you can talk about some of the Muslims and the radical Islamists that say, you know, if you don't believe in Muhammad, everybody should die.
That too can be called a religion.
There are three great religions, if I recall it, but now we've got the folks that are with the Satanic temple telling us that, well, maybe there's a fourth religion at least, their religion.
But that
basic question, Joe, is Satanism a religion?
I don't think the judge got to that.
No.
She dealt with it under civil rights and avoided that question artfully.
Very artfully.
So because that gets to the core of the issues, what is religion?
Some people would say the Chicago Cubs is a religion.
Go Cubs.
Anything you believe in, anything that you're dedicated to, you know, does religion, we use the term commonly, obviously revolve around God.
Well, in this situation, they're saying it revolves around Satan, which begs the next question, can you have Satan without God?
So you see the mess you get into when you start going into that.
And I thought Judge Rose was very smart in not getting into that mess.
yeah okay that's a quite minor from which you cannot escape
yeah I mean you got to recognize it and and that's kind of gets to John's part is it if you go down that road as to what the subject of the tent is then you're going how you're going to apply any kind of a rule
and if you're going to have a rule you have to have arguably a bright line bright line standard or something you can judge it against which is a problem that the
You know, the Department of Administrative Services had, they didn't have any bright-line standards.
It didn't inquire as to what the display would be.
There was reference to there being sticks in it, and that could be a problem.
And I went back and read some of the other cases that were cited by Judge Rosen.
They cited a person who was at the entrance of the Iowa State Fairgrounds with a stick and a sign on it and he wanted to talk about Christ and they said he was trespassing and that he was interfering with people going to the fair because they'd have to go out into the street to get around him on the sidewalk right by the entrance and that wasn't good.
Now that's, I think you've got a public safety concern here.
So the courts are adept at finding ways to avoid the question of what's religion, and I think they should be.
Well, and I think here, maybe the advocates for this display are too clever by half.
I wish that the court had taken it up this way.
And this is from the Associated Press, founded in 2013, this group out of
Salem, Massachusetts, says it doesn't believe in the fallen angel, but describes itself as a non-theistic religious organization that advocates for secularism.
Now, guys, we're not talking about freedom of religion then.
If they admit that they're not basically a religion and that they are not deistic, so
You know, from that standpoint, I don't know why this is a tough call.
They got too clever by half, and they're basically saying, hey, we don't believe in the fallen angel either.
We're non-theistic, and we advocate for secularism.
That, to me, is not an argument for religious freedom, because they don't believe.
They're non-theistic, and they're advocating for secularism.
Good job.
That
is an argument for free speech.
Under the first part of the First Amendment, you can't have it both ways.
So you see the complexity of this stuff, folks.
If you look at the free speech, hey, they got a right to free speech.
And by the way, the capital is the show-off place for a lot of different positions, philosophies, and so forth, not just religious.
But if you're going to bar them, you have to identify a specific reason why you're doing it and is barring them completely.
Is that allowable if there's a lesser standard that could be used or a lesser protection?
So
Nick, we know that there's a finitude of time and space for these displays, particularly around the seasons.
There's limitations and historically
And culturally, this is a new fangle, and it is not something that has been afforded the deference that the three great religions have had with their ability to be recognized culturally, historically, with commerce, with holidays, with decor, with celebratory music.
So even from a free speech standpoint, when you have limitations of time and space, it seems to me that by analogy again, if you've got to make some decisions on who is first in line with a finitude, a finite amount of space and time, you again look at the historical, cultural background.
And again here, it seems like this is
something new under the sun, and there's always a right to free speech, but there's not always a right to command the venue, the microphone, and the timing of when that free speech is exercised in a public square or in a public venue.
Okay, that sounds real good, John, but how do you apply it?
What would you do in this case if you were Judge
Rose?
I would say that there is no
compelling reason to have such a display.
What's the timing of when they want to do this?
Wait a minute.
December 12th.
Okay, one day, just one
day.
Well, one day, John.
That makes my point.
We have Hanukkah around that time.
We have Eliad around that time.
We have Advent during that time.
We have Christmas during that time.
We have a federal holiday recognizing Christmas, which is celebrate with a pre-factory Advent period.
And again, if this is not a theistic organization that is intruding upon historical celebration of faiths in that governmental rotunda, I think you can make a call that it's... John, John, those are
all fancy words.
The bottom line is you just don't like Satan.
That's a true statement, but I don't think...
In this case, there's any mandatum for allowing that into a schedule that traditionally historically celebrates civic holidays.
Why not, John?
Why not, John?
Why not?
That's
why it's a civic holiday.
Where's the harm, John?
I think it's a resource time and space issue.
Perhaps if this was in August or September, it might be a little different conversation.
This December 12, we know why it's December 12.
They're trying to get Pulsar by to compete from that standpoint.
In other
words, you can have your satanic display sometime in June at three o'clock in the morning.
Well, I think that's kind of an extreme take.
I think, again, if you've got scarce allocation of time and space to capital, Nick, I serve the capital.
You have groups trying to get displays up there.
every single day of the week, hour of the year.
And literally, you had to turn down requests.
And that decision is made by someone in the executive branch.
And I don't know right now, perhaps what we need to do is look at the protocols in place in the executive branch to develop.
That's where the
problem was,
John.
There
wasn't any.
Exactly.
And there should have been.
There should have been.
uh some some clearly thought out rationales and protocols for how to evaluate these requests when they come in are they I mean look other states in the union including I believe Oklahoma have had their courts uphold the refusal to allow
uh... such similar types of groups in their state capitol so you know this is not a universal interpretation that is not without some differentiating opinion look at oklahoma they say no you're not in the capital and that's been upheld by the courts there
so joe what do you think i'm going back to this and i'm thinking back to you something john said much earlier
And he reminded us of the Salem Witch Trials.
He didn't use the word trials, but he said Salem, Massachusetts.
And I think he was saying 1792, which hearkens back to the Salem Witch Trials.
I said 2013 was when they founded.
I didn't reference the 18th century.
OK.
But you're going back to the extent that if they're non-theistic, why don't they have the right to come in?
I'm not saying that I feel good about Satan.
I hate him as much as you do, I believe, at the same time.
While I dislike it, if I'm going to write a standard, how do I write a standard?
And what should that standard say?
And remember, it's then going to be applied also to other displays.
And in some points, may knock out the Christmas tree.
It may knock out the menorah.
and may knock out many other things at the same time.
So that's why we're coming into civil rights.
I get what you're saying.
Perhaps the bifurcation is necessary here.
I would say this, because they're proclaimed that they are non-theistic and secular and don't believe in the fallen angel, I'd say it can't be a religious liberty argument, which makes it fall directly into the freedom of speech argument.
As we know, speech can be
regulated in certain times in venues and circumstances, if there are finite resources that are in competition with others who want the proverbial microphone, so to speak.
And it sounds to me like, again, so many are touting this as a religious argument.
And I think we've got to foreclose the possibility that these types of groups
have standing to make a religious liberty argument here when their legal argument clearly says that they're non-theistic, they're secularists, and they don't believe in the fallen angel.
That's what I'm saying.
Okay.
Well, what if a group, John, does show up and say, yeah, you know, I'm where the church of Lucifer.
or whatever it is.
We're a religion.
Then
you go to the Gorsuch opinion, which is now basically superseded the lemon test, and you say, there is not a historical or cultural context for this, whereas there is... What
is or is not a religion?
That opinion didn't go that far, John, because if you go down that road, okay, now you open up a whole different can of worms and we're right back to the Dortcase.
Is this a sincerely held religious belief?
And we know courts don't want to have to do that.
For example, you for example, John, you said, I hate sitting.
OK, well, and Joey said that too.
OK, this is a historical belief and it comes out of the Garden of Eden.
And we're all familiar with that where the apple gets eaten and God gets upset and wants to kick them all out.
were breaking the rules.
John, the only one that didn't break the rules was Satan.
He was just doing his job.
He was tempting.
He was unjustly evicted, John.
Well, I'm still looking at the language, though, from the Gorsuch opinion.
And to me, it just seems to hone in again on trying to separate out legitimate historic cultural
episodic uh roots in in yeah i look we've got we have celebrations of christmas is literally national holiday it is embedded so much in the history and culture that it is literally a national holiday postal officials postal workers all government employees have the day off uh it's got pride of place really in terms of its historical and cultural touchstones with the american republic that that's without question
Okay.
And we've got a bevy of case law which also affords such recognition to the menorah.
So folks, you see the problem you get into when you start digging down into religion and free speech.
Notice the way the constitutional First Amendment right is worded, okay?
It says this is a freedom.
Congress shall establish no law, okay, impinging on the freedom of speech.
or the freedom of religion.
It doesn't say the right to free speech or the right to religion.
Why?
Because if it did, we wouldn't be having this discussion.
A right is a right.
A freedom has to be exercised responsibly.
And I think the concern that Judge Rose had in this situation is, did the state make an adequate showing of its regulation of this right
Responsible regulation.
Where's the facts that supported it?
What's the harm it was trying to prevent?
And is this the least restrictive manner of trying to prevent it?
None of that was shown.
Instead, what you got was anti-Satan bias, which we all agree.
But the fact is you can't build a law on that if you're a government.
Joe?
I would agree with that.
You can't build a law on that.
And it almost reminds me of Justice Potter Stewart, quote, when he said, I'm sanity.
I can't define it, but I know it when I see it.
How is it that anybody is to decide what's obscene if you won't know until the subjective judge tells you he's seen it, now it's obscene?
Without that, you have no
I mean, that's how we, based on freedom of speech, is why pornography is something that, uh, pervades the internet, and many other places too.
It's under the freedom of speech.
Okay.
Well, folks, that was the decision that came down on November the 2nd from the Iowa, from the United States District Court for the 2nd, or for the Southern District of Iowa, November the 2nd.
The next day.
Uh, before we do that, Nick, we're on Iowa Long Talk.
on KXEL, 1540 a.m.
and 100.5 FM.
Now the FCC is happy and carry on.
So what occurred on November the 3rd, the next day, the day that everyone went out voting, is there was an oral argument before the U.S.
Supreme Court in the case of St.
Mary's Catholic Parish in Littleton, Colorado, versus Lisa Roy.
The case was up for argument concerning
a requirement that the state of Colorado had with respect to participation in its universal preschool program.
Now apparently Colorado established a universal preschool program designed to provide publicly funded preschool education to eligible children.
Now under that program
Participating schools must comply with certain equal opportunity requirements, including restrictions on discrimination based on religious affiliation, sexual orientation, and gender identity.
Now, the Archdiocese of Denver operates Catholic schools whose religious mission includes transmitting Catholic teaching to children.
Okay.
One of those missions that the Archdiocese requires, enrolling families to affirm a statement of community beliefs reflecting Catholic religious doctrine, including teachings concerning marriage, sexuality, and gender.
Now you see where this goes, folks.
Okay.
On the one hand, if you want to get the
participation in the universal preschool program publicly funded, you have to affirm that there's no sexual orientation or gender identity discrimination.
But if you're a Catholic, you can't do that.
Because the archdiocese says that's not part of the Catholic doctrine teaching on married sexuality and gender.
So now you've got the conflict.
What happens on this thing?
and Colorado condition participation in a public preschool funding program on religious schools' willingness to accept enrollment requirements inconsistent with its religious practices.
Now, as I read this case, I remember
Many, many years ago, a comment made by my dad, John.
This was, I'll tell you how old it was.
This is when the school milk program was coming in, ancient times.
Houses had just been invented.
Ancient times.
And I
remember my dad was saying,
you don't want to take that money.
You don't want that government milk, as dad called it.
the third graders saying well why not dad how come he says because every time the government gives you something there are strings attached to it and when i read this case i thought my god he was right there are strings if you want this free money okay this free program then you got to comply with our rules with regard to gender identity sexual orientation etc which are contrary to what the situation is uh this case was argued
before the Supreme Court heavily argue listen to the oral arguments and it's going to be a major case because as you well know a lot of public funding Joe revolves around a lot of strings and those strings in most situations have our political and from and at very least controversial so whether it's voucher systems whether it's tax-based systems or whatever it is this is what you get whether it's licensing
of teachers by the state.
Every time the state gets involved with regard to education and your children, there's going to be some strings.
Now, John, you were the chief string person up at the legislature for a number of years, because I saw you work on these things.
And this is how it ends up.
What's your view?
Nick, my view is this.
We all remember the late, great Paul Harvey.
the rest of the story.
Let's again go back to the historical framework.
There were a pernicious and grotesquely bigoted set of constitutional amendments adopted by many of the states, the United States back in the 19th century, known notoriously as the Blaine Amendments.
Explain what that is to the
listeners.
The Blaine Amendments are also known as the No Aid Clause.
Congressman James Blaine in 1875 proposed an amendment to the U.S.
Constitution seeking to exclude from government funding schools that taught sectarian faiths targeting Catholicism.
The amendment failed to pass the Congress, but 38 states, including Colorado, adopted some form of the Blaine Amendment in their constitutions.
Part of the strategy.
the imposition of the Blaine amendments was to corral all of the Catholic kids into the government-run schools where it was the King James Bible and a Protestantized version of Christianity that was taught with the goal to basically extricate Catholic school children from the faith of their fathers and the faith of their mothers.
All the Catholic schools want to do is be on the same equal footing and not be subject to essentially the double tuition of paying for
their children that aren't even attending the government schools, merely wanting to have the right to educate their children as they saw fit in their fathers to practice their freedom of religion and not have the state impose and establish a religion on them.
So I'm very condemning of the state of Colorado that they have not rescinded a bigoted, a virulently bigoted, the last acceptable prejudice, sadly, in America, anti-Catholicism,
And Colorado first progressive as they want to be with respect to their drug laws and some of their criminal statutes Colorado still got an inherently virulently bigoted anti-Catholic amendment right there in their Constitution time for them to repent.
That's what I say, Nick
Okay now put your lawyer hat on You
go the legislature and you introduce an amendment to
Resend that like we did to prohibition, you know, that's what you do legally using that process through the legislature to get an amendment
You do recognize do you not that you legislators?
Okay, well sometime use legislation to put forth your social ideas
Well, of course, but of course
and let's face it the Catholic Church.
He doesn't have male priests So it must be discriminatory.
Well, you know, here's the thing
There are times when religious belief are going to run against the prevailing zeitgeist, okay?
Such as when, such as when is the Sabbath?
Can you make a reasonable accommodation for someone who believes that the Sabbath is Saturday instead of Sunday?
That's not just our Jewish brethren.
There are there are Christian sects that believe that it is not the day to worship on Sunday, that the day should still be Saturday.
We always have that conflict of rights, you know, an employer has rights, but then due to sincerely held religious worship believes Trump, those rights that the courts and our laws to strike decisis have often been willing to make reasonable accommodations to allow the religious practice, even though those practices may not be totally consistent.
with and in total concert with the prevailing mores of the culture or even the traditions of the culture.
Where there's been an invasion of others' rights, that's when the rubber hits the road.
But again, in education, I think what you're seeing now, I think the Supreme Court has got it right in recent years, in terms of understanding that there's no establishment of a church if you simply allow
children in non-government schools to have the same rights to education as students in government schools.
And I think when you look at the pernicious intent behind the no-aid-blame statutes, it really corrupts their argument because the irony is this.
In the inner cities in the United States of America, the Catholic schools are housing
In many instances, 90% minority students in those urban Catholic schools.
In Omaha, for instance, that's absolutely the case in the North Omaha schools.
Almost all those students are either from Africa as refugees or second or third generation Africans.
Guatemalan refugees, they're up here.
And the white parishioners and affluent donors are providing scholarships
for these children, and there's no question, but that those schools are performing one to two standard deviations, maybe even three, vastly superiorly to the government schools.
The reason I use the word government schools is because the Catholic schools are public schools.
There were Muslim and Jewish boys and girls going to St.
Cecilia Cathedral in Omaha, where my children went, where my wife taught.
That was an inner city school that had superb academic
standards and comprehensive evaluative scores, even though they probably spent less than a fourth of what the government-run schools did.
So seeing Nick, public policy is very important here.
The blame laws were pernicious because they were rooted in an inherent bigotry.
And I think in this situation, all that the parents want is a level playing field and not to essentially be double taxed
or paying double tuition for wanting to educate their children as they see fit.
Nick, it's so permonicious on the hard left that even when I was in the legislature, I had colleagues that had a different view than I did who literally wanted warrantless, no-cause, no-knock searches of the homes of parents of homeschooled children to see if they were fit parents.
No probable cause, no warrants.
uh... and literally they they wanted that codified into law that there would be these audits of homes to see if the parents were fit parents because they were merely homeschooling their children i wonder what homeschooled abraham lincoln would think about that well
i'm thinking about this and as i'm reading this uh... argument that was reported yesterday uh... the lawyer arguing for the diocese posted in a very interesting fashion says
these schools just asked the people that wanted to enroll their students in the preschool to sign a statement saying they believe in the community values or something like that, basically the Catholic Church values.
So the people that are, I mean, if you wouldn't sign it, you couldn't put your child in that school.
And so now the question at that point is, as you're dealing with it, who's making the choice?
Would a same-sex couple want to put their child in the Catholic preschool or not?
Now from an objective perspective if the Catholic preschool is the best one around they might want to put them there and then you get the question that comes up do the dollars follow the student which is what we have with the voucher question in Iowa and we have the question now people say well if you use vouchers for example the schools will have to make themselves more desirable or they're going to lose
uh people because with open enrollment they'll move to some other school so uh you get into those real naughty questions there about uh what's the school doing now but you get this nasty little one here where the dynasty says hey you've got to um say that you follow my you know you believe in what we believe in and uh again back to your father Nick there's strings to that money
Well, you're right.
You're right, Joe.
And let's step back and take a look at it broader.
The restriction on the funding says that participating schools must comply with certain equal opportunity requirements, John, including restrictions on discrimination based on religious affiliation.
So we have a diocese that says, yes, we're running a Catholic school here, but the teachers have to be Catholic.
and understand and comply with Catholic doctrine.
Let's
just go with religious freedom.
You've got to be a Catholic to teach at a Catholic school.
Bingo, you can't get any of the funding.
Okay, so my response to that is, and this shows the circumlocutions that we do, the real solution to this is saying we don't
want your federal or state money, let us keep our own money to educate our own children as we see fit.
Don't be thieves and extract the money from us.
That is not for our children.
Good
point,
John.
Good point.
But we're jumping through hoops to try to get some of that money.
And so it's tied to the government.
So the answer is forget the government aid and just let the parents keep the money.
So my dad was right.
My dad was right.
don't take the money.
So the Catholic diocese is wrong, okay?
We want the money, but we want our religion to.
Well, they're trying to do a stopgap to get some of the compensation that probably, as a matter of justice, is due to the parents.
Well, John, keep in mind, I pay taxes, so I'm paying taxes to a government school that I'm not, whose services I'm not using.
John,
the Catholic school systems close down.
Where are those kids gonna go?
They're gonna go to that public school.
You're gonna be building a lot of schools, folks.
But that's not a ripened issue at this juncture.
And Nick, if you believe in the principle of non-aggression, and if you believe that there should not be an unjust taking of private property, and that the social contract is not entailed, you funding the educations for other children while not being able to fund those for your own child,
as you see fit to raise him in the faith because that money has been expended on other children and not yours.
I'd say that's the violate the social
construct.
That's my choice.
I make that choice myself.
I make the choice where I want to
educate my children.
It's an unjust take.
It's an unjust taking to make you have to pay those taxes for children that are not yours.
It's an absolute unjust taking.
It's a violation of the social contract.
It's against the principle of non-aggression.
John, you know what?
I've never had a fire in my house.
I have all kinds of fire protection.
Why isn't it unjust taking to have to pay for the fireman
or the police
department?
I think police powers are justified.
Absolutely.
No question about it.
All right.
I'm
a reasonable man Critelli.
We're having fun folks.
Keep in mind when you're looking.
Okay, and we start looking at the Catholic school system, which I was I'm a product of you need to know that folks full disclosure But I was a product of the system back when we had nuns and priests teaching we're having nuns anymore So we have to hire the teachers we did those poor women were incredible Okay, and unpaid okay, and when we changed that we didn't do too good This is what the issue is now there are two cases the deal with
with this, John, all right?
And what this case, the St.
Mary's case puts into question is a distinction between a case called Employment Division versus Smith, which says, what's asked as a religious institution, like the Catholic system, have to demonstrate that the government permits identical secular conduct, okay, completely unrestricted to grant exceptions, versus a case called Carson versus Macon, where just the opposite occurs.
So what we've had is a conflict between two U.S.
Supreme Court decisions.
And the court's going to have to decide which one is prevalent.
The thing that concerns me is the way that the grant is worded.
Because as you know, legislation imposes social mores and justice on the citizenry.
And the mores that they are putting on the citizenry in this cases, deal with equal opportunity requirements.
In other words, you cannot have a requirement that if you're going to teach in a Jewish school that you must be Jewish or Catholic or whatever, including restrictions on discrimination based on religious affiliation, sexual orientation, and gender identity.
Now, these are mores.
that have found their way into legislation for which there's controversy among the different religious entities.
That's where the problem is.
So there are strings, or, you know, as my father would say, it's not only string, it can also be a noose.
So you've got to be cautious.
I think the irony is no one does a better job than the Catholic Church and their school systems of protecting the rights of
muslim and jewish and catholic and protestant christians along with children from irregular family situations or children themselves who may have some uh conflicted views of where they are on the uh sexual continuum and i think no one
is denying that
well we do have some issue we do have some to deny that because that's that's a pretext that they use
often in legislative arguments to oppose any help for you know and it's rooted in america's uh historic uh uh anti-catholicism
so folks you see the lawyers do have fun arguing okay this is what we do people look at us like you guys gotta get a life
But it's important issues.
It's important issues not only for us, but as you've seen in these two cases
for
all of society.
While we're talking about that, I'm going to read a few of the questions and the answers that came back.
Justice Sotomayor said, let's get to the bottom.
I'm asking you a direct question.
Your Catholic schools will reject a child merely because their parents are homosexual.
Mr. Reeves, I would say if it's the sincere religious exercise of the petitioner, then I think that would be permitted.
Justice Sotomayor, if it's a sincere religious exercise to exclude blacks, this principle would permit the exclusion of those black children?
No, Your Honor, and I don't think that's the open justice Sotomayor.
Why?
Because the belief would not be a genuine religious belief.
No, Your Honor, I think this court, how about the National
national origin or ethnicity.
There are some religions that are based on those protected characteristics.
Your Honor, I think in all of those situations you can compare what the court said.
in Bob Jones to what this court said in Poland.
Those are a couple of cases.
Both of those cases reached strict scrutiny and the difference was that the government said there is an overriding government interest, not just a compelling interest.
So it's fascinating when you listen to the argument and how the justices are trying to pin him into a corner and how he's trying to get his way out of the corner.
It's going to be very interesting to see what the Supreme Court does in this case.
The ironic thing is, gentlemen, again, just going back to some history, the Catholic Church, the popes in the Catholic Church were railing against slavery.
Back when William Wilberforce was the only other guy railing against slavery.
The Catholic clergy were marching with Reverend Dr. Martin Luther King.
The Catholic Church has always been at the vanguard.
of racial rights.
So this is so important that people understand this.
These are false canards sometimes that are thrown up, again, because of deep-rooted, emotional, virulent, anti-Catholicism, which was part of America's founding, and it does predict to this date.
It is the last acceptable prejudice.
John Kennedy knew that.
Okay, folks.
If you will write, okay, Iowa Law Talk at kxel.com, that's Iowa Law Talk at kxel.com and ask for the audio link to the oral argument on this case that we're talking about, we will send it to you, okay?
That's the best way to do it.
You can click on that and hear the whole argument.
It's absolutely fascinating.
Now, why that's important is we've given you just the highlights of what the issues are and the pros and the cons and so forth.
But this is stuff that's going to affect all of us every day now.
And it's important that you understand where it comes from and you can just sit back and listen to it.
Iowa Law Talk KXEL.com and John will send you the link.
Yeah, this has been great.
We've got two minutes left.
My goodness, how fast this hour has gone.
Final arguments, Joe Piper taking away.
Religious freedom is very important, as is freedom of speech.
The line between the two can become muddied at times.
And you think about it, both of these are First Amendment freedoms.
But you look the first ten amendments to the Constitution,
And they're collectively called the Bill of Rights, which confuses a lot of people because they believe that each of them defines a right, not a freedom.
And there's a significant difference between a right and a freedom.
And we're going to see this case, this decision will come down by the end of June of next year.
And then we'll see what the Supreme Court thinks about the arguments and how it will apply.
And we can think about it and say, will it apply to vouchers and many other exercises where we're dealing with money following the student in Iowa and in all other states or preschool or daycare?
This will be a very far reaching opinion.
And I do urge you to listen to the argument.
I think you'll find the argument fascinating.
And we want our listeners to be informed and to understand what's going on.
I encourage you to
ask for the argument or email us and ask for the link to the argument.
We'll send it to you and we'll have to stay tuned for the rest of the story, as Paul Harvey used to say.
Great, great take, Joe.
Nick, you have the final word.
Okay, folks, it's simple.
Okay, Iowa Law Talk at KXEL.com.
Iowa Law Talk at KXEL.com.
Now, this is important because we need to hear from you.
We're doing this show for you.
So send us, okay, your comments.
What do you want to hear from us?
You know, it's very important.
So I'm looking forward to seeing what you send.
Guys, this wraps it up on KXEL 1540 100.5.
Another Saturday, Nick and Joe have had the final words.
We want to encourage you to listen always during this hour, but also catch the podcast.
Go into your browser and type Iowa Law Talk KXEL podcast or Iowa Law Talk KXEL listen live and you can always go directly to kxl.com slash.
Podcasts to pull up the podcast of Iowa Law Talk guys for the great ones Nick Cratelli and Joe Piper I'm John Jacobson a salute to our wonderful engineer Sean Xavier and folks want to remind all of you We're harking now toward Thanksgiving.
We have so much to be grateful for the blessings of liberty and the abundance of this land under the guidance and protection of divine Providence, so be safe be smart be good
Be strong.
God bless us, everyone.
God bless America.
Tell me it again.
Bye-bye.
