BREAKING: Senate Votes to Repeal Federal Vaccine Mandate for Businesses

Breaking news today on Sekulow as the US Senate votes to repeal President Biden's federal vaccine mandate for private businesses. Keeping you informed and engaged. Now more than ever, this is Sekulow.

We want to hear from you. Share and post your comments or call 1-800-684-3110. And now your host, Jordan Sekulow.

Alright, welcome to Sekulow. We are taking your phone calls as well. 1-800-684-3110.

That's 1-800-684-3110. Yesterday evening, the US Senate, now remember this is the US Senate that is 50-50 right now but is controlled by the Democrats because Kamala Harris can be the tie-breaking vote as President of the Senate which is one of your jobs as Vice President. So they're technically the majority the way it's been set up. But this specific measure which was an emergency measure that you're able to utilize in the Senate, you can bypass the 60-vote threshold to take a vote on a resolution. And the resolution was to disapprove of President Biden's private employer mandate, the 100 employees or more mandate. The mandate we filed the lawsuit against representing the Heritage Foundation. And this passed by the Senate, so against the Biden administration, 52-48.

Senator Manchin and Senator Tester were the two Democrats who joined all Republicans in voting against the private mandate. All of the mandates have had significant issues in court. The mandates involving federal employees that work for Medicaid services, Medicare services, CMS employees. That's been held up and that's a different argument that has to be made because they are federal contractors. But they're losing in court and the business mandate as well.

We just filed earlier this week, we haven't gotten to it this week on the air, a petition on behalf of Heritage Foundation. Now we're in the Sixth Circuit Court of Appeals opposing the Department of Justice motion to remove the stay on the mandate. So they are inundated by the DOJ trying to forbid this mandate and they're losing everywhere across the country. And they're losing not just on the major issues, and they're all major issues obviously, but they're losing on what I would call the sub-issues.

You've got federal contractor mandates, you've got the private workplace employer mandates. And it's not just in one court, it's been a whole series of courts. Now what's interesting here is that the jurisdiction now has been, Andy, consolidated everything into the US Court of Appeals for the Sixth Circuit. Ultimately I think it goes to the Supreme Court, but everything is now at the Sixth Circuit, although there's some fighting about trying to move it out, but that was the order that came down. Yes, Sixth Circuit in a sense is good for people who are on the conservative-minded side and includes states that are largely conservative.

I think Kentucky, Ohio, and Tennessee are in the Sixth Circuit, I believe. And there is an effort of course being made to move that out, but I think it's going to stay there. But as you say, Jay, ultimately this is a matter that's going to be heard by the Supreme Court of the United States. I don't think there's any question about that.

There's no doubt about it. Now, Thanh, tell us a little bit about what happened in Washington last night. Well, Jay, last night actually was a strong indication that the mandates are also losing in the court of public opinion because I will tell you when these resolutions of disapproval come up, they're a resolution, Jay, that the Congressional Review Act authorizes and the Senate can take a vote to reject a rule that's passed by the administration. But look, a senator never votes against his or her own President on these things. I mean, almost never does it, even if it's a policy they disagree with because they want to show deference to the President of their party. So Jay, the fact that Senator Tester and Senator Manchin voted with all 50 Republicans to reject this mandate and pass this resolution of disapproval shows just how displeased I think the American people are with the mandate.

Jay, I'll quickly say this. The measure does now move to the House, but Speaker Pelosi does not have to call this measure up unless, unless a handful of Democrats in her caucus signs a discharge petition and makes her do it. Look, after these two senators voted in favor of the resolution, Jay, maybe that could happen. And yet another major school choice case at the U.S. Supreme Court, this again involving these states who open up school choice but then try to prohibit religious schools from being involved in kind of absurd arguments from the state of Maine.

We'll get into it when we come back from the break as well. Give us a call if you've got a question about the mandate, if you've got a question about the school choice case. 1-800-684-3110.

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Request your free copy of Mission Life today online at ACLJ.org. Welcome back to Secular. So just to set the stage again, you've got this major vote by the U.S. Senate because as Stan explained, I'm going to have to explain it again, but the idea that you had two Democrats cross over in a resolution like this. It's a unique way where they're able to pass these resolutions or resolutions of disapproval. And it's not subject to the filibuster so you don't have to get the 60-vote threshold. So it passed. Again, what the Senate did was say, we don't support what you're doing, President Biden. We disagree with your power grab here on trying to enforce, this was specifically the same mandate that we filed the lawsuit against with the Heritage Foundation as our client.

The employer mandate, the 100 or more employers. That mandate, again, this week, the DOJ tried to file to have a stay lifted. We filed a motion in opposition to that. Our case was in D.C. now. It's in the Sixth Circuit Court of Appeals.

I'm holding that in my hands right now. So that was filed just a couple days ago. We just haven't gotten it to it on air. But it ties together with the Senate vote. What you see is the crossover of even two Democrats. They had explained that because it's a resolution like this, usually, even if they believed it, they wouldn't say that the President was acting out of the power, didn't have the power, or was that wrong that they were going to disapprove if it was a policy decision.

But two did. It was Senator Manchin of West Virginia and Senator Tester of Montana. This is Senator Broad of Indiana. He was the sponsor of this vote.

Take a listen to Bite 22. The federal government has no authority to make anyone choose between getting a vaccine and keeping their job. This is a question that's come up with a lot of these different mandates. It's come up with the mandates with the CMS employees, federal contractors.

This idea that choosing your job or choosing this and putting the burden on the employers, as our case, we have an issue with in our case because of the burden on employers. But I wanted you to go through again because just the importance of getting those two Democrats to crossover and join all Republicans in this resolution of disapproval is a big deal. Yeah, Jordan, it almost never happens, and it specifically never happens when Democrats are in power, and here's why. I mean, the Congressional Review Act authorizes both chambers of Congress, but the Senate has a fast-track procedure to do this. It authorizes Congress to take a vote to pass a resolution of disapproval and actually overturn a rule passed by the executive branch. Typically, Jordan, senators will vote to support the President of their party making an act, even if they're going to try to convince the President to change his mind on the policy or they're going to try to pass legislation to overturn it.

But Jordan, I mean, think about this ideologically. It is especially rare for Democrat senators who actually believe that much of this power should be delegated to the executive branch, and they want their President to have expansive power in these areas. It is very rare for them to come to the floor and vote for a resolution under the Congressional Review Act, but two senators felt so strongly about this, and Jordan, I'm going to tell you, it is a direct result of them hearing from constituents.

That's where the pressure point is coming from on this. That's why Jon Tester and Joe Manchin voted with Republicans to overturn it and send this resolution of disapproval to the House. We'll see what happens there, but Jordan, at a bare minimum, I think it is a very strong sign of where the public sentiment is on this. You know, it's very interesting because the vaccinating rates are going up, and without the government mandating this, the mandate has not been held constitutional in any court. There's not been a court.

Harry, this to me is fascinating. There has not been a court where this has been held constitutional. I think that's precisely correct, and I think the Senate resolution reflects public opinion and increasingly the body of legal opinion. It's also interesting to note that Governor Gretchen Whitmer, a Democrat in Michigan, has expressed sympathy toward businesses. Now, she may be simply occurring favor with business because she faces a tough reelection campaign in 2022, but again, that reflects the power of public opinion. And so while many individuals believe in the efficacy of the vaccine, they do not believe in mandating it. And there are clear and unmistakable constitutional, statutory and political questions concerning the viability of the Biden administration's approach. And I think the Biden administration's approach with respect to the vaccine will prove long term to be another Biden failure. Yeah, I mean, to me, this idea that you've got this opposition building, you've got, you know, groups like the Heritage Foundation, groups like the ACLJ filing, businesses filing altogether.

Yeah, so many different walks of life, different politics, different backgrounds who are saying, you know, this is tough. This is impossible for us to comply with. This puts us in this unique position where we might be, are we then subject to HIPAA rules because we're dealing with people's health care information instead of the insurance company that the employer uses to deal with that. Because you'd have to, under this rule, this is what is the absurdity of the rulemaking. Under this rule, you have to have somebody in your office, for anybody who's not vaccinated, weekly, they don't just like bring in the test. We have to monitor. You have to monitor, you have to write it down. Now these tests, they're okay, the at-home tests, but they're not 100%.

None of the tests are, even the ones if you go to the doctor or a hospital, testing center. But, okay, it brings up all these issues. So let's say, what if the person monitored the test, the person took the test, they didn't do it the right way. Is that a lawsuit against the business now? I mean, it opens up, again, the private business, there's so much potential liability, and that is one of the issues with heritage. This is why you do these things at the local level, you deal with your businesses that are your localities. Right. And, you know, again, you know who's in your community and how they can operate. And we've seen that already happening.

Of course. Companies are already doing this, school districts are already doing it. We're doing it.

Everybody's doing it. Look, I mean, you know, no one mandated that we had to put in a costly filtering system throughout our offices and studios. We did it because we wanted to protect our employees, our staff, our colleagues, and it was better for everybody's health.

We needed a government mandate to say, you know, you're in a studio, it would probably be a good idea to have filtering systems to keep the air moving. We did it because it was the right thing to do. We didn't have to be mandated to do it. Now, some people are making not so great decisions, frankly, but that's up to them.

But we're making good decisions. The question here is, they have not yet, Harry, from a policy standpoint, they made this policy when OSHA said, in fact, we can't do this. They said, we're not capable of doing this. We don't have the authority to do it.

We don't have the, we can't do this. But the Biden administration used that entity anyways. And then they're kind of doubling down on this policy. And then you had, of course, the situation with just yesterday with the Senate.

I mean, to me, it seems like everything's stacking against them. So we've seen a cascading series of events, both in the Senate and in the courts, suggesting that the Biden administration, when it comes to this particular mandate, is acting like an emperor without clothes. So if you look, for instance, at the OSHA mandate, President Biden himself said he lacked the authority to issue this mandate. And then if you actually look at the statutory authority granted to OSHA, the OSHA statutory authority focuses on workplace toxic and health and safety issues. And so you cannot plausibly claim that COVID-19 is primarily a workplace risk. Certainly it's a risk in the workplace, but the risk does not generally come from the workplace.

And so OSHA is supposed to focus on improving workplace safety. And basically the Biden administration is now stuck with a number of court decisions from the Fifth Circuit. Then the Sixth Circuit has essentially upheld the Fifth Circuit. Well, it's just another example of government overreach. We've had 11 months of out-of-control executive orders, frequently that violate the Constitution. And the way our government and the way our society is designed, the rules by which we live are supposed to go through, normally, a legislative process, and that's not happening. The Democratic Party, it seems, and those on the left, they love a large central government and government mandates.

Those on the right tend to be a little suspicious of government, and that's really historically right on target because our founders had a healthy suspicion of big government too. Yeah, I mean, I think, again, this is, we've got a second briefing we filed in this case. Initially it was the petition. Then in this case, This was just filed.

Yeah, it was just filed two days ago. We haven't talked about it in the area yet. And this is in opposition to, they're trying to dissolve the state so that this goes into effect in January. And again, that's been the battle. The courts have been reluctant to do that.

They have not filed courts. I mean, I even look at what New York tried to do. It looks like the incoming mayor is going to dissolve that within four days because, you know, again, the fact that a five-year-old either has to have a vaccine.

The test doesn't work to go into anywhere, and it's wintertime. I mean, so it puts, you know, a tough situation in New York. I'll say it like that. The incoming mayor said that wasn't exactly where it's used, but again, we're seeing this idea of these power grabs. Even in the localities and the municipalities, when they go too far, the courts and the people are just saying no. And that is, that's kind of, there's a bipartisan effort there. I think, especially when you get down into the states and communities and the businesses. People aren't saying you have to be a Republican or a Democrat to hold this view.

It just doesn't feel American. But I think what we did was this, and Logan had this slogan this year for the ACLJ. He said, now more than ever.

And just look at this. We have fans working with this team in D.C. on these resolutions. We've got our teams here working in court. We're broadcasting this to you live around the country to give you informed and educated. We've got website information up, content up on our social media platforms, all because you support the work of the ACLJ.

We're in a matching challenge campaign. Go to ACLJ.org. That's ACLJ. Only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive. And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free, powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

It's called Mission Life. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases, how we're fighting for the rights of pro-life activists, the ramifications of Roe v. Wade 40 years later, the play on parenthood's role in the abortion industry, and what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life. Request your free copy of Mission Life today online at ACLJ.org slash gift. At the American Center for Law and Justice, we're engaged in critical issues at home and abroad, whether it's defending religious freedom, protecting those who are persecuted for their faith. I'm covering corruption in the Washington bureaucracy and fighting to protect life in the courts and in Congress. The ACLJ would not be able to do any of this without your support.

For that, we are grateful. Now there's an opportunity for you to help in a unique way. For a limited time, you can participate in the ACLJ's matching challenge. For every dollar you donate, it will be matched. A $10 gift becomes $20.

A $50 gift becomes $100. This is a critical time for the ACLJ. The work we do simply would not occur without your generous support. Take part in our matching challenge today. You can make a difference in the work we do, protecting the constitutional and religious freedoms that are most important to you and your family.

Give a gift today online at ACLJ.org. I took it more into what the Senate did in our case two of the mandate. We'll get back to that in the second half hour of the broadcast. There was also a major case yesterday at the Supreme Court involving school choice yet again. Now if you've been following us, you may think, why again did this case have to go to the Supreme Court? Wasn't this handled in 2020 in the Espinosa case out of Montana, where the Supreme Court said you can't have this kind of division? And this case now is out of Maine.

Now Maine made a very unique argument, and Chief Justice Roberts immediately seized on it. So they were trying to distinguish themselves from Montana saying, we have no problem giving money to your school if the church runs the school, but it can't have a sectarian curriculum. You have to offer a non-sectarian curriculum. Now where this gets even more unique is that, does that mean, okay, just don't have Bible class, but what about all the things that your worldview would then have inputted?

It'd be every subject. It'd be very difficult to run a non-sectarian school. But take a listen to this line of question because it shows the hostility that still exists to religious groups. Initially this was a resistance to Catholic schools.

We're talking about way back, 1800s. And I argued one of these at the Supreme Court. Yeah, and now we're talking about in Maine, it's because there are not enough schools in these rural areas for people to attend, so you've got to have a choice. But listen to this line of question because it shows the hostility that still exists to religious people.

Chief Justice Roberts, bite six. Let's suppose you have two schools. School A is run by religion A, and that religion has a doctrine that they should provide service to their neighbors, so they're set up and running a school. But there's nothing in their doctrine about propagating the faith or whatever, so it does look just like a public school, but it's owned by religion.

Religion B also has a school, but its doctrine requires adherents to educate children in the faith, and the school is infused in every subject with their view of the faith. Now, would the first school get the funds? Yes. Okay. Would the second school?

No. And that's because of the difference between the two religions, right? That's because their program is specifically instilling and promoting religion in students. Right, and the other religion does not. That is correct. So you're discriminating among religions based on their belief, right?

No, I would not say that. Religions can have whatever belief they want, but if they want to take part in Maine's tuition program, the education service they have to provide has to be the service that Maine is purchasing. Well, and one religion says that's what they do with education, and the other religion says, no, we use it to propagate the faith. So it is the beliefs of the two religions that determines whether or not their schools are going to get the funds or not.

Okay, Andy, I'm having a flashback to 1992. Lamb's Chapel versus Centrum Riches Union preschool district. Same exact issue. Now, here we are 20 years later, almost to the day, and there are the same issue.

And what is the issue? The issue is can you discriminate amongst religions? You can't discriminate against religion and non-religion. That's content-based discrimination. Here, as you said, Jordan, it goes a step further. Here's what they're doing. They're saying we're going to deny access to funds if your religion proclaims evangelism.

We're going to say that's when it's no. And discrimination between religious groups is also viewpoint discrimination, violates the religion clauses, violates the free speech clauses, freedom of association. But this shows you that – Jordan, you said the word. The hostility here, Andy, this – do you remember what Justice Scalia said during the Lamb's Chapel case? You know, he said it used to be thought that religious people and religious practices were good for the community. Apparently that's not the view of the government in Centrum Riches Union preschool district anymore.

How's that working out for you? That's exactly pretty much – paraphrase a little bit – that's pretty much what Justice Scalia said, but that's exactly the point. Well, that's exactly – And we won 9-0.

I wish we had Justice Scalia back. We're not going to win this case 9-0. But we're going to win it 6-3.

But we're going to win it 6-3. I don't think there's any question about it. The questioning was very tough. What Chief Justice Roberts says is you're discriminating among religions based upon their beliefs.

That's what they're doing. And he pointed to how one religion taught the same way as a public school, but a different religion taught differently. The first would be able to participate in the program. The other would not. So the beliefs of the two religions determines whether or not the schools are going to get the funds. And just as Chief Justice Roberts said, and we have said that that is the most basic violation of the First Amendment religious clauses for the government to draw distinctions between religions based on their doctrines. You would think that by now, in the year 2021, we would know that, Jay, and we would not have that as an argument. But the Biden administration is supporting the Maine law. Of course, of course. And Justice Clarence Thomas, Jordan, I thought had the greatest line when he talked about homeschooling.

This is classic Clarence Thomas, number 10. In Maine, can a parent decide that they simply do not want to send their child to any school at all? They could homeschool the child.

No, I mean zero education. No, there is compulsory attendance laws which would be satisfied. So you require them to go to school and you, in certain areas, you don't have schools available.

That's correct. So if you require them to go and you don't have schools available and you make provisions for them to comply with that compulsory law, then how could you say that going to a particular school is a subsidy? How can we say that going to a particular school is a subsidy? Yes, you say you require them to go to schools to do something that you haven't provided for. But then you make a way for them to do that.

And you have now, you now say it is a benefit or a subsidy. But it is you who required them to do it. In certain places you can provide them with a public school and in other places you can. But they still have to comply with the law. Yes, your honor, but this court has made clear that states have a legitimate interest in compulsory education laws.

Well I agree, I understand that, I'm not arguing with that, but you have required them to go. You required them to go and then you're saying you can't go to this particular school simply because it's religion. Yeah, out of this, at Maine's largely rural, people don't realize that, there are 260 school districts in Maine.

Out of those, over half, over half do not even have a high school and so they've depended on private schools. And I looked it up this morning, there are 14 Roman Catholic high schools in Maine and there are 32 non-Catholic Christian high schools in Maine. These 46 schools sometimes are the only high school in a district and yet they're saying if it's religious you can't go. As crazy and as ironic as it sounds, well what they're saying, Maine's position is, they will not violate against religious schools as long as they're not religious. Yeah, I take it this is Chief Justice Roberts again, Bite 7, where he said this is the most basic kind of violation of the First Amendment taken by Bite 7. You're discriminating among religions based on their belief, right?

No, I would not say that. Religions could have whatever belief they want, but if they want to take part in Maine's tuition program, the education service they have to provide has to be the service that Maine has purchased. Well, and one religion says that's what they do with education and the other religion says no, we use it to propagate the faith. So it is the beliefs of the two religions that determines whether or not their schools are going to get the funds or not. And we have said that that is the most basic violation of the First Amendment religion clauses for the government to draw distinctions between religions based on their doctrine. Like I said, we've had a series of cases at the Supreme Court over decades on that exact point, most of which we want either 8 to 1 or unanimously. The establishment clause doesn't license religious people and practices to be treated as if they're subversive to the American Republic. You know, you can't have halfway school choice, is what they're saying here too, is that you can't open it up for private schools to be able to receive this funding and then at the same time say, but this religious school can do it because they're not too religious. You have to put your curriculum forward. That gets into the question too.

That may be too religious, that's not religious enough, and so one gets it and one doesn't, and then you have the government deciding about between religions, that's the worst. That's the second half hour coming up. Go online at ACLJ.org. Keeping you informed and engaged, now more than ever, this is Sekulow. And now your host, Jordan Sekulow. So we're talking about the school choice case out of Maine that was at the U.S. Supreme Court yesterday, of course we've got the audio from that.

I do want to reset 242. The U.S. Senate has voted 52 to 48 in disapproval of President Biden's private business vaccine mandate. That is the same mandate the ACLJ has filed a lawsuit against representing the Heritage Foundation. We filed in D.C. The case is now in the Sixth Circuit.

Earlier this week we filed a motion that's odd because the government is trying to remove the stay that's preventing this from going to effect in January for those employers that have 100 or more employees with unbelievably high fines or crippling fines for businesses. That puts them in really bizarre situations. You have to have someone task at your office or multiple people if you were a bigger employer to be basically test watchers. And they would have to record these tests and then again the liability of you taking in people's medical information and trusting a printed out card which we've seen issues with all over the world is that it's a piece of paper from a printer. It's ridiculous.

I carry it with me wherever I go. There's not a lot of safety measures. You would think they would have a system that was a little bit more protective. I mean I like the idea that if you are vaccinated you have the ability in an O5 and God forbid you had to go to the hospital or something that's good. But you would think it would be a better system than this.

But I think Harry I go back to this. They have not, I said this in the beginning of the program I'm going to say it again. And look I'm in favor of the vaccines. I've been clear on that. We think the science is good. That's our position, my position. I've been fully vaccinated and I'm glad I have been. We have a filtering system inside our office, an extensive filtering system we put in when COVID broke out and when new filtering systems were developed.

Why? Because we wanted to protect our colleagues. But the government didn't have to tell us to do it. And here if the state government was doing it that would be one thing. But this is, I don't even know if the federal government could do it that even this would be the right agency. But that's another question. But I don't think the federal government can do it.

I think that's probably correct. And certainly if the Biden administration's Justice Department was not so concerned about potentially prosecuting parents who appear at school board meetings and calling them domestic terrorists. I think the Biden administration Justice Department would have researched the law and given President Biden the benefit of the Constitution. The Constitution clearly bars much of what the Biden administration is trying to do. In the Sebelius case, the Obamacare case, the Supreme Court clearly and unmistakably said that the federal government violates essentially the Commerce Clause by issuing a health care mandate.

And so now we have a similar situation here. And yet the Biden administration's Justice Department apparently either hasn't gotten through to the President or doesn't know what it's doing. In addition, if you look at case law, the case law suggests that the police power belongs to the state, not the federal government. It would be very different if the state was doing this.

Absolutely. And then on the legislative front, it went through the Senate as a resolution. There's no way it passes in the House, correct? Well, it would take five members of the Democrat caucus to actually force Speaker Pelosi to put it on the floor. I don't think that's going to happen, Jay.

I'm not saying it's impossible. But look, I actually think the significance of this is not the fact that it would get all the way enacted into law because I think President Biden would veto it. And I don't think there's a veto override. But the significance of it, Jay, is what you underscored a second ago. It is a clear sign to the administration and, by the way, to the courts considering this as well, that this is not the way the American people want this issue handled.

Look, even the leader of this resolution, Jay, said essentially the same thing you did. He said, I'm vaccinated. I think people should get vaccinated. But the federal government should not force them to do it.

And just very practically, Jay, I mean, what is the worst way to convince someone who's on the fence to get a vaccine? For the federal government to come to their doorstep and say, you must get it. That's just not going to work. It would be very different if it was a state. Yeah, I'll tell you, the policy issue too, not to put aside the legal issue, the policy behind this has been, I agree with it, horrendous. Continuing, I mean, we saw Chuck Schumer on the floor of the Senate. It's partisan.

It's making it, again, keeping this as a partisan issue. What's interesting about the lawsuit is it's not. It's about employers. Employers saying, this is too much. This is going to hurt our business. It's also putting a weird relationship between the employer and the employee and the watcher over the test taker and who can sue and who's keeping these documents in their paper cards.

That you get from your pharmacy or wherever you got, if you did get the vaccine, wherever you got it. At the American Center for Law and Justice, we're engaged in critical issues at home and abroad. Whether it's defending religious freedom, protecting those who are persecuted for their faith, uncovering corruption in the Washington bureaucracy and fighting to protect life in the courts and in Congress, the ACLJ would not be able to do any of this without your support.

For that, we are grateful. Now there's an opportunity for you to help in a unique way. For a limited time, you can participate in the ACLJ's Matching Challenge. For every dollar you donate, it will be matched. A $10 gift becomes $20.

A $50 gift becomes $100. This is a critical time for the ACLJ. The work we do simply would not occur without your generous support.

Take part in our Matching Challenge today. You can make a difference in the work we do, protecting the constitutional and religious freedoms that are most important to you and your family. Give a gift today online at ACLJ.org. Only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive. And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free, powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

It's called Mission Life. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases, how we're fighting for the rights of pro-life activists, the ramifications of Roe v. Wade 40 years later, play on parenthood's role in the abortion industry, and what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life.

Request your free copy of Mission Life today online at ACLJ.org slash gift. Welcome back to Secula. We are taking your phone calls 1-800-684-3110, and Ed is calling from Nevada online with a great question about the school choice case as well. We're getting into that again on the broadcast right now. Ed, welcome to Secula. You're on the air. Hey, how are you guys doing today?

Thanks for taking my call. I have a question about the school choice issue and secular schools versus religious schools and, you know, the debate about what curriculum they're teaching and so on and so forth. My question is what happens if these schools just adopt the Bible as a textbook?

I'm sure this would cause them to have a constitutional meltdown. Unless you adopted all the other… Unless you maybe adopted all of the other text as a textbook, all the other religious texts. Yeah, at least enough for me. But, you know, I was thinking about this, Wes. As a priest, you ran… I mean, you had schools that were in your churches. Yes, absolutely. K-12 school. So if you were in Maine and you were providing that service, you don't want the government coming in and telling you what curriculum to teach?

Absolutely not. And other than a local school board, you don't want the government telling even a public school what to teach as well. The interesting thing about this is that this bias against religion was almost unheard of in America until about the 1950s or so.

And then it became a real issue. But, in fact, our nation was founded openly on some religious principles. And the Constitution says we can't make a law, Congress can't, to establish religion. But on the other hand, they cannot make a law to deny the free exercise thereof either. And that fine line, that balance is what America has lived by for 245 years.

And yet there are groups who would like to take that away. Yeah, it's interesting because you've got… there's a great line which we'll get to by Justice Salido in a minute, but also Justice Breyer had some too. He's been kind of a moderate on this, I would say.

Let's take a listen. I mean, it is discriminatory against religion, but I think the Establishment Clause problem or interest underlying it forever has been beware if the government gets too involved. One, people will think the government favors some things as opposed to others, and that that will cause strife. I think it is discriminatory religion, but I love Justice Breyer, actually.

I get along with him very well. The point is this. No one said Maine had to do this. Right. They could build public schools. They don't have the money to do it. Right.

Probably. They don't have the taxpayer money to do it. So it's cheaper for the state to offer these vouchers to people in rural areas and places like that who don't even have a high school to go to within how many miles. But there are religious schools, and we went through this. There's Catholic schools, there's Protestant schools, there's probably other religious schools, and no one forced Maine into the position. Now, we support school choice, so I'm glad that Maine is opening up. But you said the right thing. No one forced Maine to do this system.

No, there's actually a lot of red states that still haven't adopted school choice yet. Right. And a lot of that reasons because the laws of their books are these laws that the Supreme Court hasn't been clear on yet.

Yeah. And, Harry, so it was interesting because Justice Breyer has kind of been more moderate on the religion clauses, actually, than some expected him to be. But it was interesting the way he phrased it. It is discriminatory. Yes, I think you raise a very, very valid point, but I think in order to set the stage properly, it's important to look at what the state of Maine has said, particularly in its oral argument. And so, in its oral argument before the Supreme Court, the state of Maine, in my opinion, has impeached itself more than Jussie Smollett. Number two, on the other hand, the state of Maine has a compulsory education requirement. And on the other hand, beyond that, it's important to note that Maine discriminates, as Justice Breyer points out, against religious schools that teach religion. In addition, for Maine to enforce its discrimination against religious schools, it must engage in something that is precluded by the Constitution, which is an excessive entanglement with the school in order to decide which private religious schools are eligible for Maine state funding. An excessive entanglement means that the state of Maine is, in effect, establishing a preference, and that means it's establishing a preferred religion which violates the Lemon v. Kurtzman test. And so, I agree with you, but I think the state of Maine has placed itself in a crawl space which it cannot get out of. But I want to play the beginning of Justice Breyer's statement again, because this is the...so it's called classic, Stephen Breyer here.

Take a listen. I mean, it is discriminatory against religion, but... There you go.

Okay. It is discriminatory against religion, but he's a professor, so I get that, but it's interesting that they're all acknowledging this. Well, Thad, you pointed out, too, this is going to be another issue because if Build Back Better has that early childhood education part, it sounds nice to everyone when you say, we're going to provide this so people don't have to figure out the preschools and things like that. But this also dives right into that issue. And I think it plays right into the clip you played from Justice Breyer, Jordan, because, I mean, look, the ramifications of this go way beyond education. I mean, this is a tactic in Washington, D.C. from the left. More and more, they want to exclude faith-based providers or faith-based services from all sorts of realms in that Build Back Better Act that President Biden is pushing and that's being considered in the United States Senate right now.

There are a bunch of dollars in there. I mean, a lot of dollars, Jordan, for child care, but they say that faith-based providers cannot access those dollars. And you look, there's one study that says when parents have a choice, more than half, I think the number was 53%, actually choose to send their child to a faith-based provider.

So are you going to take that choice, first of all, away from parents? Second of all, when you send those dollars for child care services, why are you going to discriminate against the faith-based providers? And I would just say, you know, look, the education one is maybe the most significant. It's the one that's at play in this case.

But we've got to be aware. The aim from the left is to push this theory into all sorts of different realms. Yeah, the idea that you can't, you know, the early childhood education feels like that realm is mostly either run by private companies who do these preschools that are all over the country, you know, branded, or religious institutions.

I mean, that's it. So Build Back Better wants to exclude all the religious schools, many of which the parents, again, you're talking about young kids. They're not being indoctrinated into some religion at this point. That's a nice place for your kid to go because they run a good program. And Maine is giving them no other choice because you don't have public schools because you don't have the tax base to do it. So if you're going to do it, just do it right. Interesting comment by the lawyer and then Justice Alito.

Take a listen, number 14. Public schools often have a set of values that they want to instill, public service, be kind to others, be generous. I think what the defining feature or what would make the difference is whether children are being taught that your religion demands that you do these things, that your religion demands. They really are discriminating on the basis of religious belief. What I described is, I think, pretty close to Unitarian Universalism, isn't it? And that is a religious community.

So that would be okay. That religious community is okay. They can have a school that inculcates students with their beliefs because those are okay religious beliefs. But other religious beliefs, no. So the Greek Orthodox Church, who has Greek Orthodox schools, if they were in this situation could not teach their view, but their Unitarian Universalists can.

That is fundamental religious discrimination. Well, that is, Jay. And, you know, once again, we're taking a part in parsing in a very nice fashion and a very instructive fashion the different justices. But I want to call out specifically a justice who impressed me in the Dobbs case by rattling off the number of cases that were overruled by the Supreme Court and stare decisis was insisted by Justice Breyer as being so important. And so he'd rattled off a number of cases in which the wrong case has been overruled by the Supreme Court. And he got, again, in this case, Carson v. Macon, the main program case, to the heart of it, Justice Brett Kavanaugh. He insisted and said very clearly what the real issue is. Maine's program is discriminatory by treating religious schools different than secular ones.

That just says it out there. Discriminating against all religions versus secular is itself a kind of discrimination that the court has said is odious to the Constitution. What makes it unworkable is that you have to submit your curriculum to the state.

So they're doing state by state. So this attorney, so you got to pose that universalism question, right? So if you're a universalist, you teach all religions are wonderful. Is that still too religious?

And he thinks it might be. So the follow up is that even that would not qualify as non-sectarian enough because it's too religious for Maine by 14. Public schools often have a set of values that they want to. Unless you can say that you would treat a Unitarian school the same as a Christian school or an Orthodox Jewish school or a Catholic school, then I think you've got a problem of discrimination among religious groups. Regardless of the religious group that is affiliated with the particular school that is at issue in the case before us. So part of the challenge here, I think, you know, is in part the definition of religion itself.

Okay, so right there. If they can't figure out the definition of religion, don't have a law that says you can have a religious school with a non-sectarian. Because how are they, no one is going to be, what will happen is what they want to do is so that religious schools don't even apply.

Yes. Because then you've got to have the government in your curriculum all over. And that I think is the trouble even Justice Breyer is talking about. If you open this door, the government can't go through and say, oh this Muslim school is okay, the Sunni school is okay, the Shia school maybe, it's too Muslim there. Or this was too Jewish or this was too Christian.

And even the Universalists, they're just too religious. Only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive. And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free, powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

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Give a gift today online at ACLJ.org. I want to play a few more for this case because there's really a little bit making the news on this. It's not the overturning of Roe vs. Wade. And honestly, I think a lot of people thought Supreme Court already handled this in 2020 with Montana, that if the state opens it up. But what they're saying there, the difference is that Montana was, just if you're a religious school or not, that's it. They didn't provide an option in Montana to be a religious school that provides a secular education curriculum. And so that's how the Supreme Court decided this is a different case and somehow that case out of Montana did not define what happened in May.

Now let me tell you the truth, what I believe. I think the Supreme Court is still dancing around. I think the main case shouldn't even got it there because Montana should hold it. They're just not sure yet. This makes it tough for school choice advocates because you can't yet go into a state and say every school is available and feel like you're not going to have a constitutional crisis. So maybe after this one, if you can't do it just based off that they're religious and you can't do it because their curriculum is religious, then that should be it. I don't know what else is left, but I'm sure they could find something.

Hopefully not. But I want to play. This is a longer bite between Justice Kavanaugh and the state of Maine. But again, it gets to the heart of these issues.

Bite 18. The problem, I think, and the tension with what you just said as to those two questions is that our case law suggests that discriminating against all religions as compared to secular, comparable secular, is discriminatory just as it is discriminatory to say exclude the Catholic and the Jewish and include the Protestant. And so it's not exclusion of religious people and religious institutions from public benefits solely because they're religious is itself discriminatory. We've said that. Trinity Lutheran said odious to our Constitution.

How do you deal with that? So I think there's a nuance going on here that I just want to make sure I can clarify that I think that there is a difference between sort of state regulations, in other words like state prohibitions, and state programs that are providing funding. And so I think when it comes to prohibitions, a state can't discriminate based on status or use.

So you can't say a person can't be Catholic and you also can't say that a person can't take communion. I also think when it comes to subsidy programs, there you can't discriminate based on status. So you can't say that we have a playground program but you can't, you're not eligible if you're religious.

But I think that there's a fourth category and the fourth category is a subsidy program where the subsidy is being used for a specific purpose. And it excludes purposes that are contrary to what the government is trying to establish and are going to be used to directly advance religion. So he penalizes the religious adherent. He puts a penalty on the statutory clause, doesn't allow that, and that's exactly what they just said they're doing.

Maine's argument is in that bite 14. He said, public schools have often set of values they want to instill public service, be kind to others, be generous. And that's defining of a public school and that's somehow different than a religious school. A religious school doesn't want their kids to be nice and public service.

This is bite 14, we just play his part. Because it shows you where the state of Maine, and you see this a lot in the northeast. That's why Alito brought up the universalism. You might not see a lot of universalist churches where you live, but if you live in the up northeast, they still exist in those parts of the country and they actually have some congregants going. So, but take a listen just to where Maine believes the difference between public school and Christian school is.

This is scary, really, is what they think. Public schools often have a set of values that they want to instill, public service, be kind to others, be generous. I think what the defining feature or what would make the difference is whether children are being taught that your religion demands that you do these things. That your religion demands that. Well then you really are discriminating on the basis of religious belief.

Yeah, I just want to jump in. So they think that because it's basically they're like teaching you a kind of communism. Yeah, I know. And that's what they're promoting is that you do this because you want to be a good person, not because you think God wants you to do this. Exactly. As if the end goal doesn't create the same thing, which is a kind, good person who thinks it's good to take care of your community. Yeah, Maine's trying to say we're not discriminating, and yet their argument is blatantly discriminatory. You know, and what they're basically saying in one way is, look, we really need our kids to go to your religious school because we can't afford our own schools, but we also reserve the right, we're going to tell you what you can teach and what you cannot teach, and that's just wrong on so many levels.

The Justice Kavanaugh quote that you played, it's right on. This is discriminating and treating a religious school differently than a secular school. But Elena Kagan thinks that discriminating is okay on religion.

Because listen to what she said. The state generally doesn't have to subsidize exercise of a right. You know, we can't put you in jail for saying something. We also can't deprive you of an unrelated benefit for saying something. We can't say you don't get food stamps because we don't like your speech. But that doesn't mean we have to pay for your speech. And we do that all over the place in constitutional law. We do it in the free speech clause, we do it in other areas as well.

You turned it exactly around, Justice Kagan. Maine created the program. Nobody required Maine.

Maine could have said, hey, we're going to take money. It's the food, not the speech. It's the food. The school being able to go to school is the food.

It's necessary. The legislature can say, you know what, we're not going to get enough of the tax base locally, but we're going to, as a state, come in and provide schools to our citizenry. She has it exactly the opposite of what the actual situation is.

They do this, these justices, they turn the hypothetical and what the response should be is, that's interesting, that's not this case. Because, Jordan, as you said, the food you're referring to there. Food stamps.

Food stamps. It's school. It's the school. You know it and the state says you must provide it and also there's federal laws about providing it.

So there's no question that you've got to provide it. Yes. And then the question is, if you can't provide it and you allow these private institutions to be an option. How do you then discriminate? And so she tries to flip it around to confuse people because they have a hostility towards anybody who's religious. Exactly. Absolutely. So I think it's important to keep in mind that Justice Kagan, who is a brilliant lawyer, is absolutely confused.

Yes. So in this particular case, she prefers the deprivation of a benefit given by the state to a religious school on its face that is discriminatory. She doesn't seem to understand this and her hypothetical basically impeaches her claim. One of my cases, I can't remember if it was Lamb's Chapel or Murgon's, Justice O'Connor wrote, you cannot treat the religious practitioner, religious police, not only is it subversive to the American republic, but subject them any to unique disabilities, which this does. Well, I think that Justice Kagan really is disingenuous.

Her statement, she knows exactly what she's doing, by the way, and these statements that she made, such as the bite that we played, really need to be evaluated from the basis that she is, along with Justice Sotomayor, against any kind of religion whatsoever, in my opinion. And they're just trying to justify that. And what their position really is, where it really ties back into, and we don't have time to get into that right now, but this is because the public schools and the teachers' unions don't like any of these laws, they want to make it impossible for a state like Maine to implement these laws. So they'd rather Maine go back and just say, you know what, this is too much for us, we'll just have to raise taxes.

Right. Which is going to be very tough in a state like Maine, which is very independent and kind of even Republican leaning, especially on fiscal issues, to say you're going to raise taxes if something's available in these small communities, rural settings. But it's teachers' unions. The ACLJ was involved in the issue at the Senate with the mandate. We filed suits on that.

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