Christian Nationalism in Legislation: Facts vs. Fear

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Murthy v. Missouri

First, the anti-trans hysteria accidentally came for a cisgender girl

Debunking the Christian nation myth – Andrew Seidel

For more information about the Founding Myth check out Andrew’s book:
The Founding Myth: Why Christian Nationalism is Un-American

Secular Left had a previous episode that included an interview with Andrew Seidel
The Struggle For Real Religious Freedom: A Talk With Andrew Seidel

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Show Transcript

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[0:01] In this episode, we have the origin story about the hysteria in Ohio over trans women playing sports. Then we talk about the unconstitutional Ten Commandments law recently enacted in Louisiana. I’m Doug Berger, and this is Secular Left.

[0:25] Music.

[0:39] Welcome to Secular Left. I’m your host, Doug. I want to thank you for joining us today. Hopefully you’ll enjoy this episode because there’s a couple of big things. But before we get into the meat of the episode, I wanted to mention that this week that this is being recorded, is we’re expecting some big Supreme Court decisions to come down. In particular, whether or not Donald Trump is immune from prosecution. We’re still waiting for that, and they’ve been dragging their feet. It’s part of a plan to drag the feet until the election, and then they can say, oh, well, we can’t do anything because it’s an election.

[1:23] But one of the ones that came down this week, One of the decisions that came down this week was of interest to me. It was Murthy v. Missouri, and it was decided on June 26th, and it was the social media censorship case. What it was is that Louisiana, it was two states and something like five conservative social media users sued the federal government. They claimed that the federal government coerced and encouraged social media platforms to censor their speech. And the case interested me because…

[2:14] Facebook and X and Instagram and all those places, they’re independent companies. They are third-party private entities that have rules and regulations for posting. They call them terms of service. And so they can enforce any type of rules that they want to. And the reason why it’s not a First Amendment violation is because you have a choice whether or not to be on that platform. and the trade-off on making that choice is you have to abide by their rules. Now, the facts of the case is that the Biden administration, in particular the Surgeon General and the CDC, they flagged posts and talked to these platforms about misinformation, particularly about COVID-19, vaccinations. Vaccinations, the FBI talked to these platforms about misinformation regarding the elections, the 2020 elections. And in some cases, the platforms did remove, post, or block users from using the service if they transmitted or shared this misinformation.

[3:34] Now, I always thought, you know, in the case, I always felt that it was a bad case. Because these people that were suing, the states and the users that were suing, were trying to say that the federal government was censoring them, or forcing the platforms to censor them. And I always figured, and I always thought, that the platforms had the ultimate decision.

[4:03] You know, it wasn’t like the federal government was threatening to shut them down unless they blocked these messages, or they would get it like a subpoena or some other kind of legal document to come in and say, you have to shut down these messages that are fake. It was nothing like that. All they did was they said, hey, look, you know, you got some of these people on your service and they’re sharing this misinformation. You know, could you shut that? Could you shut that down? So the plaintiffs in this case were saying that that caused them injury, that they ended up self-censoring themselves, and so they weren’t able to express their views freely, and that was a violation of the First Amendment. The Fifth Circuit Court of Appeals agreed with them and created an injunction to prevent the federal government from talking to the platforms.

[5:11] And then that decision got taken to the Supreme Court. Well, the Supreme Court decided on June 26 that the two states and the five individual social media users who sued did not have standing. And what that meant was that they did not prove that they were injured by the actions of the federal government. So the court didn’t necessarily rule on the merits of the case, whether or not it was actually censorship or a violation of the First Amendment. What they said was that the people that sued couldn’t sue because they couldn’t prove that they were injured by the action. But in the text of the decision, they do explain that it is nearly impossible to prove an injury or to prove standing for third-party actions. And in fact, they don’t allow it. So you can’t sue the federal government if a third party supposedly injures you.

[6:25] Let’s say, in this case, Facebook deletes your post. Well, you can’t sue the federal government over the actions that Facebook took unless you could connect the federal government to that decision. Let’s say you had proof that the federal government called Facebook and said, take that down. And if Facebook did, then you could say that you were injured and you could have standing. Well, none of these plaintiffs proved that in their case. And so basically, it’s a wash. But the text of the decision, though, pretty much conformed to how I was thinking about it, was that Facebook and X and Instagram and TikTok, they’re all independent companies that make decisions on their own, the federal government can ask them to do something, but unless they force them to do it, like through legal means, then the users of that service has to abide by those rules. And I never thought for once, thought it was censorship.

[7:43] But so I just wanted to explain that. I thought that was an interesting case. It’s not the most interesting case this term, but I thought it was very important that they didn’t just say it was censorship, that it was a wash.

[7:58] Do you like this podcast and wish you could do more to support it? Visit our merch store and load up on our swag and help support the show. Visit slash shop.

[8:16] And so what I wanted to talk about today is some of this. Some of this is negative, but it’s just my observation. I am not LGBT. I have many friends and family who are. I actually dated a person who was bisexual, and I do not personally have a problem with that. Never had a problem with that. My feeling is, my personal feeling is, you love who you love, and everybody else should just stay day out of it. This country has gotten way too judgmental about other people. And I think part of that has to do with social media. People just get in other people’s business. And I think we need to take a step back and stop doing that. And it manifests itself in these laws and legal policies that hurt people. Because you think, well, this person isn’t living exactly how I think they should live, so I’m going to make it near impossible for them to live their authentic self. You know, how arrogant is that?

[9:32] You know, the legislator that implemented or got the gender-affirming care ban passed is Reverend Gary Click over in Fremont. You know, he’s just very arrogant about thinking that he knows better than trans people about how to live their own lives.

[9:54] You know, I was just reading an article the other day about how this hysteria over trans athletes, sports athletes, because that was the other part of the bill that got passed, was it banned trans women from women’s sports in high school, K through 12, through the Ohio High School Athletic Association. Anyway, so I was reading this article. It’s this blogger. He’s called The Rooster. If you get a chance, you should check him out. He covers the statehouse a little bit better than some of the mainstream media does, is that he tries to hold those in power accountable for some of the things that they do. And he had this article that was written by another person named Ben Ferry, F-E-R-R-E-E, who had worked for the Ohio High School Athletic Association. That’s the big agency that controls high school sports in Ohio. And he was talking about how the anti-trans hysteria started in Ohio or got going in Ohio in 2019 after highly mistaken grandparents called their state senator to complain about who they thought was a trans woman playing eighth grade basketball. a ball.

[11:22] And so that state senator then called the Ohio High School Athletic Association to investigate. And so I wanted to read a little bit from this article just to give you a sense of what they’re talking about.

[11:39] It starts out, it says transgender people make up approximately 1.7% of the population of the United States. Despite that small percentage The ACLU counts 515 bills across the country targeting trans people in 2024 alone, including seven in Ohio.

[12:00] And in this past January, Ohio passed the ban on transgender athletes. Now, this person that wrote this article, they had worked for Ohio High School Athletic Association up until 2021. Right.

[12:16] And so, it says, in 2014, due to requests from member schools on how to handle trans athletes, the OHSAA created a trans athlete participation policy. It isn’t an easy process. Male to female transgender athletes must be on hormone therapy for a year and have a doctor state they don’t possess an unfair or unsafe physical advantage in order to play sports. That approval has to be redone every year. From the inception of the rule, a total of 19 MTF transgender athletes have competed in OHSAA sports at the junior high or high school level. The association estimates that 400,000 student athletes participate in sports each year in Ohio. And the writer writes.

[13:35] And so then he gets into how this hysteria got started. And what it was was these grandparents watched their granddaughter’s eighth grade basketball game and were upset to watch a trans female dominate the contest. And they wanted something done, so they called their state senator. And so this person that wrote this article on the rooster was an investigator, so they went to check it out.

[13:56] And in the five years that they had the policy in place, again, in 2014, they put in a policy, they had not received any complaints. And because of the complicated way a transgender athlete gets permission to play, they have records. They keep records of all of them because you have to sign a form, you have to get a waiver, show that you complied with the policy. So the OHSAA has records. And so this writer says, it also surprised us because our records did not show that we had any transgender female athletes in the eighth grade playing basketball. ball. So they found out what school it was, and they contacted the school, and they found out that the school said they did not have a trans athlete playing. They did have a girl who was large for her age and had a short haircut. She was, in fact, the best player on their basketball team, but she was also cisgendered or female. And so basically these grandparents thought that because this girl had a short haircut and was taller than all the other girls and was great at basketball, they just assumed she had to be trans.

[15:25] And so that’s how these things get started, these hysterias, okay? And so it took multiple times to pass that ban. And finally, they were able to pass it when they attached it to the gender-affirming care ban.

[15:43] Which technically they were violating the one-issue rule for legislation. But, you know, when you have a heavily gerrymandered legislature, all bets are off. So, anyway, because this sports ban was tied in to a gender-affirming care ban, it effectively made the sports ban redundant. Trans youth athletes can’t compete in sports if trans youth athletes don’t exist in the first place. See? Because if they have the gender-affirming care ban, then they’re saying that trans kids don’t exist. And if they don’t exist, then there is no reason to have a policy for them to play sports. You know, it’s kind of a logical thing. And then this person also He also mentions that restrictions on transgender athletes have always been a devious mix of transphobia and misogyny. And they said, There’s a reason only male-to-female athletes are forbidden from participating in sports, but not female-to-male athletes who are taking testosterone.

[17:00] Because they think that the women can’t compete with men at all. But they’re not saying that a woman that takes testosterone to transition to a male can dominate male sports. But anyway, so try to put a pin on this particular discussion was that the Biden administration, President Biden, Joe Biden, his, I think it’s the Education Department, they are issuing new Title IX regulations. Yes, it’s from the Department of Education. They’re expected to take effect in November, and those regulations would formally forbid blanket transgender athlete bans.

[17:56] And so that is one of the reasons why our state attorney general, David Yost, is going in with other religious conservative and political conservative attorney generals across the country to file a lawsuit to prevent those new Title IX regulations from going into effect. Because if they go into effect, then their ability to hurt the trans community by passing laws to where they don’t exist, they wouldn’t be able to do that because the federal regulations would require schools to let trans women participate.

[18:41] So, like I said, this article is pretty good. I’m not sure if it’s open to the public because this is on Substack. But I just wanted to feature that and probably maybe in social media or something I’ll link to it. But just imagine that the whole thing about trans women and dominating sports, which isn’t true anyway, because there’s been several, many trans women athletes around and they don’t all dominate the sports that they’re in. So that’s a false claim. But just to imagine that here in Ohio, this got started because a couple of grandparents saw this girl.

[19:36] Basketball player, who was very good, and they just naturally assumed that she had to be a trans woman. That’s how the bigotry works. That’s how it clicks in your mind. Your bias, that’s how it works, is that you have a particular perception. You’ve heard like talk radio or you’ve seen it on TV and so if you see something that’s similar, a similar pattern you naturally assume that it’s the worst scenario rather than investigating it and checking it out first.

[20:13] And so, hopefully, this ban, the gender-affirming care ban, has been suspended for now, and it’s in court. It’s in federal court. I think there was one other one, maybe Idaho, I forget, or Tennessee, where they had a similar ban, and it was struck down as being unconstitutional. And that’s how I feel about it. That’s how humanists feel about it, is that gender-affirming care bans are unconstitutional because you’re taking power away from not only the trans kid to direct their own health care, but you’re also, in those cases where the parents want to support their trans kid, taking away the parents’ right to dictate the health care for their trans kid. For more information about any of the topics covered in this episode, check out our show notes at

[21:16] Music.

[21:22] On Wednesday, June the 19th, which was also the holiday Juneteenth, Governor Jeff Landry of Louisiana signed into law in his state a law that requires all public schools, well, all school classrooms, have a poster of the Ten Commandments, the Christian Ten Commandments, posted on the wall. And the law not only prescribes that the Ten Commandments be posted, but the law also dictates the language to be used. And that they can’t use any state money to put it up, but they assume that there’ll be donations given. And they also made it optional to post other examples of historical documents along with the Ten Commandments. So the Ten Commandments is going to be required, but anything else a school wants to post is going to be optional.

[22:33] And right away, we can already tell you that on the surface, on the face of this, that the law is going to be unconstitutional. Now, of course, the legal environment that we live in today, especially with a 6-3 conservative Supreme Court that has really ruled in favor of Christian nationalists recently, it’s not a slam dunk, but it is a very strong case that it’s going to be found unconstitutional.

[23:14] There was a case in Kentucky 20 years ago, or it might have been in the 80s, where they also tried to put up the Ten Commandments, and that was ruled to be unconstitutional. So there’s hope. The Americans United for Separation of Church and State, FFRF, and ACLU and the ACLU of Louisiana are already going to file a lawsuit. Okay. But what I wanted to do is I have a clip. I have two clips of Governor Landry talking about this new law. The first one was his remarks as he’s signing the law. And then the second clip is from his appearance on Fox News where he’s defending his choice. And he gets called out by the Fox talking person, whoever, Sandra Smith, I think is her name, about what’s the point of it all. And what he says is pretty interesting. So let me play those clips for you. This bill mandates the display of the Ten Commandments in every classroom, public, elementary, secondary, and most education schools in the state of Louisiana.

[24:36] Because if you want respect for the law, you’ve got to start from the original law given, which was Moses. And yet the Ten Commandments is something bad to put in schools. It just it’s amazing to me. It really is. So I have so much to get to here. But so for those listening right now, they’re wondering, what’s the goal? Because it’s not as if this is going to be taught in every school and classroom. This is just being displayed on the walls. So my question to you is, how is this going to improve the school environment, and the performance of kids in those schools? When, Governor, I pull up the report cards of these public schools, and Louisiana is struggling. I mean, it is at the bottom of the country. The education system is failing these kids. I mean, Louisiana’s 43, 44th in math and reading. So is this going to help what is a very big problem in Louisiana?

[25:33] Look, I think it’s part and parcel for helping kids anywhere around the country if other states followed our suits. But at the same time that we signed that bill into law, we signed a string of others. I signed 20 bills, including this one, to reform Louisiana schools. Look, 20 years ago, the state of Florida had the same statistics that you just rattled off that Louisiana now has. They went through a number of educational reforms. We took up some of the things that many of those states like Florida have done, and we signed those into law. We just believe that displaying historical documents, especially something that is as important as the Ten Commandments. Look, when the Supreme Court meets, the doors of the Supreme Court on the backside have the Ten Commandments. Moses faces the U.S. Speaker of the House in the House chamber. He is the original giver of law. If most of our laws in this country are founded on the Ten Commandments, what’s the big problem, Sandra? That’s the part that I don’t understand. All right. Well, the first thing I want to do is I want to explain to those who don’t know is the Ten Commandments are a historical document for Christianity. It’s in the Bible.

[26:57] There’s a big story about Moses going up into the mountains and getting these tablets and coming down and telling people, you’ve got to abide by these rules or you’re going to be going to hell. And it was like, because he was leading his people to the promised land and they were worshiping idols, etc., etc., etc., whatever the Bible story is. And for a lot of Christians, the Ten Commandments is a moral code that you learn when you are going to Sunday school or vacation Bible school or if you’re just reading the Bible.

[27:37] Now, what the mistake is that a lot of these Christian nationalists today make is that they claim that the Ten Commandments was the foundation for the laws of the United States and the Constitution. And that is not the case. It’s a false statement. The Ten Commandments has nothing to do with American law. In fact, many of the Ten Commandments, should they be created into laws, would be declared unconstitutional.

[28:11] So maybe one or two, like thou shalt not steal and thou shalt not kill somebody, those might carry over, but the rest of them don’t. But the Ten Commandments is not a basis for American law. American law comes from historical laws from the ancient world, such as the Code of Harambee, which is one of the first written laws. The Napoleonic Code is a historical antecedent. And English common law. A lot of legal decisions that the Supreme Court makes is sometimes based on English common law. The United States was an English colony. So we get a lot of our legal concepts and our laws that carried over from being part of England. And so the Ten Commandments has no place. In fact, in the U.S. Constitution, the Ten Commandments isn’t mentioned at all. God and Jesus is not mentioned at all.

[29:24] And you would think that if the founders were so religious and so devoted to Christianity that they would have put that in the document, a founding document, but they didn’t. You do find a reference to God and the Almighty Creator in the Declaration of Independence, but that was an aspirational document. That wasn’t the law of the land. The law of the land doesn’t include God or the Ten Commandments. In fact, there is a clause in the Constitution that prohibits a religious test for elective office. I also thought it was humorous that Governor Landry, in his remarks, was talking about if you’re going to have a respect for the law, you need to start with Moses. A lot of kids don’t learn how to behave by looking at posters on the wall. You know, it kind of reminds me of those inspirational posters that some gift shops sell where they have like the like the kitten hanging from a tree and it says, hang in there, you know.

[30:36] And so people don’t kids don’t learn that way. Kids learn morality. They learn how to know the difference from right from wrong when it’s modeled in their community and by their parents and their family members and the people that they see. We constantly hear about how, let’s say, kids who misbehave, who get in trouble with the law, they get in trouble for the law because you’ll look at their parents or their family members and they’re in trouble with the law. So it kind of just spills over. That’s why, you know, and I know that people are going to have this debate about environment or hereditary or anything. That’s not what I’m saying. I’m not saying it’s hereditary. I’m just saying that if somebody grows up in an atmosphere where there is no respect for the law or it’s dismissed or played down, they will less likely have a respect for the law. So just having a poster up saying obey the law that’s not doing anything and so I thought it was interesting that that Fox person, called the governor out about that you know having that poster up.

[31:55] For the Ten Commandments, isn’t going to make those students better students.

[32:00] They’re not going to make them more productive citizens. You know, that has to come from not only getting a good education, but having their needs met outside of school. Like, you know, having food to eat every day, being clothed, housing, having their parents being able to provide for them without too much trouble, you know, that is going to make these kids better. And also, putting up those posters of the Ten Commandments also doesn’t paper over the fact that Louisiana’s education ranking is very, very low. And that’s what you do. You do these props and what’s it called? Performa. You do these performer stunts to mask over and paper over the inherent issues that you’re not addressing.

[33:01] They’re addressing, they’re getting rid of DEI and CRT. And it’s like, why don’t you just spend money and make sure that the kids get a basic education, how to read and write, and how to be productive citizens, and how to be good people, and leave the morality and the religious education to the home and the parents outside of school.

[33:31] And we know that this work by these Christian nationalists wasn’t meant to better the religious education of students because they only limited it to Christianity.

[33:46] In 2015, there was an issue that arose in Tennessee at the Maury County School District in Tennessee where some parents had complained about an assignment that required students to transcribe the Shahada. The Shahada, one of the five pillars of faith in Islam, states that there is no God but God and Muhammad is the messenger of God. Similar statements can be found in the religious texts of other monotheistic religions, such as Christianity. In fact, the Louisiana Ten Commandments law, the first one is, there are no other gods but this God. And you can find it in Judaism, too. And while the word Allah is often linked to an Islamic deity, it’s the word for God. And so it’s not, they’re talking about the same God as Christianity, but don’t tell the Christians that. And so, what happened was that the parents complained about it, about these kids learning one of the five pillars of Islam, and it caused a big stink.

[35:02] The other ironic thing, too, is that a lot of these same people that support posting the Ten Commandments on the wall think that putting a pride flag up is indoctrinating students. What do you think that the poster for the Ten Commandments is? They want to indoctrinate the students. And one of the people that was supporting this law on another news program, I think it was CNN, said, well, if people don’t like the Ten Commandments, they can just look elsewhere. They don’t have to look at it. They don’t have to read it. And that’s what people We’re telling people like her when they complained about pride flags and CRT. It’s like, well, if you don’t like it, don’t look at it. So basically, the reason why they did this is simply it’s Christian nationalists. You know, it’s a power trip for them. It’s like it’s like how animals how animals urinate on their territory to market. That’s what the Christians are doing is they’re marking their territory, just like we see with LifeWise and their little Bible school meets during the day. They’re marking their territory.

[36:24] And people are going to get hurt and it’s not going to be the Christians. It’s going to be the people that are in the marginalized religions. Not even just Islam. You’re talking Jehovah Witnesses. You’re talking about Mormons, Rastafarians. There’s over 4,000 religions in the world and they are limiting it to this one particular religion.

[36:53] So I’m going to close out this segment about the Ten Commandments I’m going to play a clip from constitutional lawyer Andrew Seidel he’s the Vice President of Strategic Communications for Americans United.

[37:06] And he was speaking to Emily Amick. She’s a lawyer, journalist, and political analyst who served as counsel to Senate Majority Leader Chuck Schumer. And this was a live Instagram video that he did, Andrew Seidel did, talking about it. And so he raises some of the same points that I just mentioned, but he’s a constitutional lawyer.

[37:28] So I think it sounds more authoritative when it comes from him. So let’s take a listen. The state of Louisiana decided to write its own version of the Ten Commandments, which began, I am the Lord your God, you shall have no other gospel for me, and then force every single public school in the state all the way up through college to display these religious rules in their class. Immediately the Americans United for Separation of Church and State, that’s the organization I work for, AU,, if anyone wants to check us out, announced with our allies, ACLU, FFRF, that we are going to sue over this law. The lawsuit is going to be filed next week sometime. We’re already lining it up right now. It’s just kind of finishing the details on it. But this is a big one. I mean, because this is very clearly unconstitutional. There’s no real question here as to the legality of what’s going on here. They want this legal challenge. The governor even invited it, right? So why do you think it’s unconstitutional? First of all, the Supreme Court has said it is.

[38:33] So back in 1980, the Supreme Court, in a case called Stone v. Graham, which was out of Kentucky, Kentucky had almost a very similar law. We’re going to put the Ten Commandments in classrooms. And the Supreme Court said, no, you can’t do that. That is violating the religious freedom of every single student in those classrooms, right? It is not just, and that’s why we have a separation of church and state. I think a lot of people don’t think about that. The reason we have a separation of church and state, is to protect the religious freedom of everybody. That’s one reason. You get to have one God or no gods or every God from every holy book, if you want. That’s the beauty of living in this country. But here you have the state saying, no, this is the one true God. This is the holy text that you need to follow. And we want everybody to obey it. And you actually, you can see this, the sponsor of the law is a representative named Dodie Horton.

[39:20] And she said something like, I don’t care about the atheist i don’t care about the muslim i care about kids reading god’s law right and you know they are this is an attempt this is just one piece of a christian nationalist scheme that’s going on around the country christian nationalism is on the march uh and it’s this is just kind of louisiana’s on the forefront of it uh but unconstitutional violates the religious freedom of students you have the state editing a holy book right i mean that’s just everybody off i don’t understand like Like, why everybody in Louisiana is like, why are you doing this? They’re actually, the state is actually editing a version of Exodus 20, right? They’re taking out parts of Exodus 20 that they find offensive and then displaying this for students. And I don’t know, if that were my Bible, I’d be pretty upset about it.

[40:07] And then you have, obviously, the separation of church and state. Very clear precedent on that point. But this is kind of what they’re going for. They think they are emboldened with this ultra-conservative Supreme Court we have. And they think that they can take this all the way to the Supreme Court and then maybe get evicted. I don’t think I’m not that optimistic for their side. I feel pretty good about this one. So to drill down on that, I mean, because, you know, it’s so blatantly unconstitutional. Why are they doing it? Why are they excited about it? And it is because this impact litigation strategy has worked for the far right. I mean, that’s how they overturned Roe, which was settled law, which for lawyers out there. I mean, no one thought that Roe would be overturned because it was such settled law. Yeah. Yeah. Nobody. Yeah. I mean, that’s like, I think, and that’s the scariest part of this, right? And I mean, that is definitely where they are coming from. There is a case from 2017 when Gorsuch was on the court already, where the Supreme Court refused to take up a Ten Commandments challenge. And this wasn’t a challenge that was in public schools, which is what we’re going to have here in Louisiana. This was a challenge. It was in Bloomfield, New Mexico. There’s a Ten Commandments monument on the city hall, right in front of the city hall.

[41:21] ACLU won that case, cost the taxpayers $700,000, and the Supreme Court refused to take it up, right? So that’s not even anywhere near as strong as forcing kindergartners to confront this, right? Forcing second graders to read like, oh, what’s adultery, teacher? Please tell me more about that, right? This is, this is grooming I know right this is like.

[41:44] Public schools are the last bastion of church-state separation. And we’ve seen them come after public schools time and time again. But I mean, this would be kind of a bridge too far, I think, even for some of the justices on the Supreme Court. We’ll see. We’ll see. And who knows what the Supreme Court looks like by the time this gets there. I mean, this election is certainly going to determine the look of the Supreme Court in two, three, four years when if this case finally works its way up. So I’m not super familiar with establishment clause litigation. Is there this, I mean, in privacy and equal protection law litigation, we started to see this growing statute of history and tradition, which Thomas is pushing forward. There’s a lot of actually interesting commentary coming out right now about how Amy Coney Barrett is like, oh, you guys are taking this a little too far. You want to give guns to domestic abusers? You want women who are dying to not reserve care? What did I sign up for? We’ll see what side she takes. But, you know, is there a world in which they are sort of just merely like laying the rhetorical.

[42:55] Jurisprudential groundwork for further litigation in the future that we’ll see that maybe this will get struck down, but they’ll provide the pathway for future litigation to come up? Yeah, so there’s so much to unpack there. Such a good question. First of all, I think like Amy Coney Barrett is so good at like just baiting us with her oral argument and then just smacking us down when she writes her opinion. But second of all, the history and tradition argument that you see spreading out into these other areas of law, it really actually begins in the separation of church and state. Like you can kind of trace it back to this 1983 decision, Marsh versus Chambers, where, you have Ernie Chambers in Nebraska, this awesome state legislator, challenge the fact that the legislature pays the chaplain to have Christian prayers every single day before they open session. Like, I thought we had a separation of church and state. How can you do this? And the Supreme Court looks at things and they’re like, ah, you know what? They kind of did this back at the time they had the First Amendment, so it’s probably okay. We’re just going to go ahead and say it’s fine. And the history in that case is terrible. It’s actually, it’s really poor. It’s law office history. It’s cherry-picked history.

[44:05] And to kind of reach that result. old and that’s exactly the theme the the frame the the method that you see being used everywhere else right like you look at the dobbs opinion there’s a ton of history and tradition in there but it’s all like it’s it’s not accurate in any stretch and and what they are really trying to do and the ten commandments is such a good example because the what they are saying is like no the ten commandments are the basis of american law and they’re the basis of our morality so not only do We have the history of this influenced our law, but we also have the history of separating church and state, which couldn’t mean separating it from the Ten Commandments because they’re the basis of our law. And that is just so, so wildly, wildly wrong. You know, I mean, there’s so much about the Ten Commandments that actually runs counter to our founding principles, right? I mean, look at that first first amendment. I’m the Lord, your God. You shall have no other gods before me. It would be harder to write a commandment that is more at odds with our our

[45:01] First Amendment than the First Commandment. And if people want to know more, I debunk all of this in my book, The Founding Myth, I think why I wrote the book.

[45:10] The overall reason, Emily, that they are focused on this history and tradition is because they are trying to drag us back to a time when conservative white Christian men ruled and focusing on history and tradition allowed them to do that. That’s the whole point of this history and tradition test. You know, it’s so interesting because as legal people for so long, we got frustrated with Scalia’s focus on originalism. And if we only knew the conservatives were likewise frustrated with Scalia’s focus on originalism, because that limited the plane of little history that they could cherry pick. And they were like, oh, no, we can only talk about the founders. And it turns out they didn’t hold sufficiently enough abhorrent views. We need to expand it to even a more fantastical idea of history and tradition where we can just like choose of whatever 15th century British rapist. and cite him in Dobbs. Definitely wild. It’s so wild. And to me, one of the things that is like.

[46:13] That’s probably the most frustrating is that there’s so much that’s wrong with our constitution, right? We could do so much better writing it today, but one of the brilliant aspects, one of the truly unique and original aspects of it is the separation of church and state. It’s those secular foundations that make that document unique and a true contribution,

[46:33] not just to political science, but to humanity. I mean, it begins, we the people. And those words are poetic, but they’re so much more. They are citing power in the people. And that was the first time that had been done. They didn’t say, we get to do this because of this God, right? Which is how it had been done throughout all of human history until then. It’s we the people are doing this. It bans religious tests for public office, and it does so in some of the most clear and emphatic language in the document. It is and then you also get the First Amendment and these are the truly unique and original aspects and then we’re burying this under these myths and these lies about being founded as a Christian nation and based on the Tenth Amendment. It’s completely un-American.

[47:18] Thank you for listening to this episode. You can check out more information including links to sources used in our show notes on our website at Secular Left is hosted, written, and produced by Doug Berger, and he is solely responsible for the content. Send us your comments, either using the contact form on the website, or by sending us a note at comments at Our theme music is Dank and Nasty composed using Amplify Studio.

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