Hes a graduate of monument college, will clark on the fifth Circuit Court of appeals. He represents clients in cases covering constitutional issues civil rights disputes, Administrative Law and a variety of other matters of civil lit dpagz. Hes argued cases before several courts of appeals and also before the u. S. Supreme court. Hes a member of the edward coke Appellate Court and a codirector of the Supreme Court appellate. Next to will is kyle duncan. Hes argued several federal cases. Hes a graduate of Lsu Law School and got an lml in law school. Before starting his own firm kyle was louisianas first solicitorgeneral and also served as council at the becket fund and recognized Public Interest law firm. Joe got his under graduate degree from harvard and jd and masters degree from the university of virginia. He also served as deputy General Council at the federal chukzs commission for three years. And for five years he served as an assistant solicitor general at the department of justice. Hes argued ten cases for the u. S. Supreme court and primary author of briefs in over 150 other cases of the high court. So lets jump right into this. So, will, the court heard two pretty significant redistricting cases. Why dont you tell us a little bit about those cases. Id be happy to. And thank you for having me here today. This is a great event. I will not get into the weeds of the various districts mostly to keep you from falling asleep and keep me from messing up. But tboth cases but happens s a state has a variety of objectives they want to achieve in redistricting. Traditional district lines, some political issues which well be talking about later, but also the state must consider race. And why is that . Because of sekz two of the Voting Rights act. It requires states to ensure voting representation. In the mid1990s the Supreme Court explained to these states if you use race too much and it becomes the dominant factor in redistricting, you violate the equal protection clause. So whats going on here is the states feel, and i think with good reason that theyre sort of caught in between. If they use race too little, they have a potential section 2 violation. If they use race too much, they have an equal protection violation. These cases are both about drawing that line. In bothicateses, both North Carolina and virginia argued among other things they used race appropriately. In both cases democrats challenged them for using race too much. They did not want states to draw majority districts that had majority populations well over 50 . They wanted those lines to be close to 50 and have those voters spread out. Although those vets look ather divided, what i want to mfsz today is these cases prodly stand for the proposition and i think unanimously in both cases that the court is going to be very skeptical about the use of race. The democrats prevailed in both cases without a dissent on the basic proposition. So i think the headline coming out of these cases is that democrats won challenges that were arguing that republicans use race too much to form minority districts. But i think what the untold story of the case is and what i want to emphasize a mome or two longer, this is really a win for Justice Thomas and Justice Kennedy. If you go back to the shah cases from the mid90s, the liberals dissented in all those cases. Groups like the Lawyers Committee for civil rights opposed the creation of this line of cases. Their argument is making a really strong minority district with well over 50 of the people being minority was what the Congressional Black Caucus wanted. They wanted safe seats for minority representatives. And any argument that using race too much violated the equal protection rights of other citizens, should not be made a constitutional right. They have now come full circle. Those majorities were made in the North Carolina case because Justice Thomas provided the decisive vote. So i do think its important to keep in mind how radically transformed the debate is. And lastly, i would say what makes that interesting is what the next round of litigation will be. I think the next round is about whether using section 2 itself is subject to scrutiny, and whether it may violate the equal protection clause. And we will see whether the majorities in these cases that were so critical of the use of race will be equally critical when it is a challenge of section 2. Before i turn to your fellow panelists and ask them if they have any views on this, i want to touch on a related matter with respect to tex term. So the court has greed to hear another redistricting case involving a partisan out of wisconsin. I was wondering if you could talk a little about that. I think the theme will be well, next term has really interesting cases even if this term didnt. I think its really fascinating. The Supreme Court has struggled with this issue, to put it mildly. At one point there was probably a bare majority to say that it is unconstitutional. What the court has struggled with is finding a manageable standard for that. The trial court here in wisconsin thinks they found that standard. Wiflk does not believe they found it. Its on direct appeal, so i dont think its a huge surprise the court took it. I will be sort of maybe the minority here. I think it will likely more fizzle than be a big decision. One, the Court Granted a stay of the Lower Court Decision 54. That is at least a preliminary indication that he might be able to find the manageable standard hes been looking for. Two, i think theres some rather technical issues about whether you can challenge these things on a state widebasis that have to be challenged before you reach the big ticket situation. And then third i would give this sort of a lesser billing, in North Carolina in the redistricting case i was togging about, he went out of his way to talk about not as a social good but as something thats been around since the time of the framing and recognized as political practice. I dont think that necessarily tells you all that much, but i think for those who think this is the case that will finally recognize a durable, clean, i would say im not quite there yet. Do you think they will find it significant that political meanderring is part of our nation . I think justice s kennedy joined it. So theres some reason to think that. But he has gone out of his way other times to say if you could find a durable standard, he might find the claim. I think whats unusual here is in the past these claims have come up when a minority of the voters in the case have such a big political control. I dont think thats fack actually true of wisconsin. Its a Majority Republican Party has entrenched their political power. Thats not quite the same thing of whats been going on in the past. Kyle, you have anything to add . I thought one of those redistricting cases was interesting for one reason will pointed out, that it was Justice Thomas joining up with the liberals. Thats not something you often see. Justice thomas on occasion does surprise. I think the last case was the texas license plate case where he joined with the liberals to reject the challenge to the state of texas limitation on what groups could sponsor license plates. That was something interesting, and i think will makes an observation that Justice Thomas is playing a long game here. Kyle, the court has seen a pretty significant number of state church cases. I was wondering if maybe you could talk about those cases. Sure thing, john. The state lutheran case and the advocate Health Care Case are both important religious liberty cases, although they get at religious libertiy in different ways. Trinity lutheran being a Health Care Case although the advocate health care has a great deal of practical significance for church affiliated health pens plans. Trinity lutheran is one of the this as we said a term that didnt have blockbuster cases. But Trinity Lutheran is an extremely mornt case under the trinity exercise clause. The Court Finally took it up. The issue is whether a state policy of denying grants because of the religious affiliation of a potential grantee, whether that violates the free exercise clause of the First Amendment. The facts of this case are very simple. Missouri has a program called the Missouri Scrap Tire Program that offers, quote, reimbursement grants to schools, Day Care Centers, and the like. When they purchase Playground Services that are made from recycled tire said, chief Justice Roberts has this memorable line for me, that the petitioner in this case is a Day Care Center thats affiliated with the Lutheran Church that has pea gravel on its playground. And chief Justice Roberts says pea gravel can be unforgiving. Meaning kids, i have some kids and kids fall down and get hurt and scream and cry. The and the purpose of this program is to prevent that prom happening. Its a health and Safety Program and also a an Environmental Program because it reimburs playgrounds only when they use recycled fires. So the petitioner in this case is a church that uses a Day Care Center and applied for the program. It appears the church would have received a grant. It was ranked very high ploong the applicants, but it was denied a grant. Why was it denied a grant . It was a denied a grant because of missouris interpretation of its provision. It prohibits the granting of funds to any person or organization, quote, owned or controlled by a church, sect, or otherligious inty. This provision may be among many state constitutions which were lashlg largely anticatholic state amendments that came up in the late 19th century. So the question is when missouri applies this kaungsitution to deny the grantees ability to get the grant, does it violate the free action clause sphand the court bides a vote of 72, yes, it does violate the clause by imposing a special liability solely due to their religious stat mc stat. As i said, the vote was 72. Justi justi justice with the exception of a notable footnote, footnote 3, which only four justice joined. And well return to that in a second. Justice thomas and gorsuch were both at separate opinions in which each joined the others concurrence. And justice brieer wrote a separate concurrence, which is also significant. Very briefly, whats the reasoning of this case because its important. Id say the theme of this case is that apparent agreement across seven justices really masks some underlying potential disagreements about future cases and how about the free exercise clause will apply to other kinds of Public Benefits. The basic reasoning of the case is that when a law targets religious persons or organizations for special disabilities based on their religious status, strict scrutiny applies. Such laws for those of you who are familiar with the free exercise rubric, such laws are not generally or apcotable laws under the smith and Employment Division case. The missouri policy expressly discriminated against applicants based on their religious character, and seis therefore subject to scrutiny, which the law failed. The court made short work of the tailoring part of the analysis and basically said missouris desire to have a church separated organization couple of other notable things about the case. Missouri argued this really isnt a burden on religious exercise. Instead its only a denial of a subsidy. On its face you can argue the case has some facial plausibility. Missouri is not telling the church what it has to be believe, how it has to worship, not even telling the church it cant a playground or dicare center. Its simply telling them we wont subzdize and replace. The right is the right to participate in a Government Program without having to disavow ones religious character. Finally, and ill talk quickly about footnote 3, missouri relied heavily on a previous decision of a court i think in 2003 or 2004 called lock v. Davy of denying scholarship funds based on one wanted to use those scholarship funds to prepare for the ministry. And the court read lock very narrowly and said lock is not about the status of the grant ruseepiant but instead about the particular use the grant recipient wanted to use the public funds, and that is to use them for the ministry, which they said are unique public spending clause. And so the court narrowed lock v. Davy. A brief note, footnote three is not joined by majority of the courts, joined by only four justice. Footnote 3 says this, quote, this case involves express discrimination based on religious identity with respect to play grpd resuffering. We do not address religious uses of funding. We do not address religious uses of funding or other forms of discrimination. Now this is another attempt to cabin the reach of opinion and lead off for future cases. As you can read in the concurrence Justice Thomas and gorsuch will have none of this. They dont think this a principled way of reaching the limits of the case. On the other hand, the other justice arent necessarily telling in their view School Vouchers, but theyre saying we dont want to address that right now. Very interesting. How am i doing on time . Yeah, if you could quickly summarize the arista case. Ill go quickly. Arissa, now im not an arissa attorney so please forgive me in advance for stumbling over all this. But arissa which is comprehensive set of requirements for Pension Plans has an exemption for church plans. Originally this was for Pension Plans planned and established by a church. But because there was incontroversy how that order would apply to a pension plan established by an order of catholic nones, congress amenned the church plan in 1980 to broaden it. To include a plan, quote, maintained by an organization, end quote, whose principle purpose is to maintain plans. The important part here is these are not churches but these are sort of church affiliated organizations. Now, ever since 1980 all the agencies charged with enforcing this arissa exemption have read the exemption the same way. That is to say that if a plan is both established and maintained by a nonchurch principle purms organization, which is what the court referred to it in shorthand, thats okay. You still qualify for the church plan exemption. This was the uniform interpretation of the irs, the department of labor and the acronym i cant remember what it means, the pgbc. The Public Benefits guarantee corporation. See, i studied for this. They all have read this exemption the same way, and hundreds of letter rulings by the irs that said, yeah, its okay if the plan wasnt actually established by a church provided if it was established by a nonchurch inty, provided its maintained by this qualifying organization. What caused this case to go to the Supreme Court is that three circuits reached the opposite conclusion on what this Church Exemption meant and said, no, the plan has to be actually established by a church. And this had ramifications, potentially for many, many plans. And they ruled that in fact the agencies had been correct all these years, that this amendment to the church plan should be read exactly how its written. And that a church plan thats both established and maintained by a nonchurch qualifying organization does qualify for the exemption. This is a significant case in terms of its impact or potential impact of the opposite rule, the opposite rule would have been a bad impact in many peoples views on Pension Plans that are established and maintained by church affiliated but nonchurch organizations. The last thing i will say is that although this sounds very dry two, things. This was an opinion written by Justice Kagen. She made this case interesting to read, even though the arissa stuff is dry as a bone. And she sticks very, very closely to the text of the amendment. And really this thing for purposes of statutory construction comes down to the meaning of one word, which is includes. What does include mean when a statute says we have a church plan here but it includes this other thing. And i found it a really entertaining and engaging read. The other thing is where is the religious liberty aspect of this case . Its all under the surface. Some briefs including one filed by my firm pointed out that the original amendment to arissa was enacted by congress in order to avoid a couple of religious problems that were caused by the original definition, to make a long story very, very short, we didnt want agencies determining what a church was. And so, for example, we didnt want an agency determining that a religious order of nones running a pension plan was not actually a church. And we also didnt want an agency determining that a religious order of nones running a hospital is not a religious function. We didnt want that because it would create all sorts of religiou religiou religious autonomy problems, who in effect who want to have Pension Plans run by church affiliated but