Welcome back to
the Liberty Insider.
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Before the break,
we were into the weeds
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of a very perplexing
series of court decisions
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revolving
around religious rights
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being applied at an execution.
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So continue with the second case
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that really...
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Yes, so this man...
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Complicates the
matter even further.
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Yes.
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Yes, this is a very
strange development,
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unexpected and hard
to understand frankly.
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So in this case, it
was almost identical facts
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except that the
prisoner was a Buddhist.
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And in this case,
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the court not
only accepted the case,
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and said that
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he was entitled to a hearing on,
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you know,
whether he was entitled
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to have the
Buddhist advisor in the case,
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but actually Justice
Kavanaugh of all people
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whom, you know, I
gotten the impression
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that he was going to shape
up as another Scalia like figure
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on the far right.
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But he actually
wrote a concurrence
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that was very strong
and quoted the same cases
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that Justice Kagan
has quoted in her dissent
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just a few weeks earlier.
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So affirming the right
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to be free of
religious discrimination
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and to have all
religious beliefs,
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you know, treated
equally by the government.
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So this was a very
interesting development.
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It was, as I said, in my blog,
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it was a very
welcome development.
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So which one sets the precedent?
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Well, the first one
doesn't really set a precedent
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because it wasn't
decided on the merits.
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It was decided on
procedural grounds.
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So there is...
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Well, then it's better
than bad that the better one,
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they at least made a
better effort through.
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Yes.
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And the question is
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why did the court reverse itself
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in a matter of a few weeks?
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And, of course, technically...
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Maybe the lunch service
wasn't as good the previous.
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Technically, it
wasn't a reversal
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because in both
cases, they use timeliness
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as the, I call it an excuse.
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The first case they
said he wasn't timely,
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the second case, they
said that he was timely.
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But frankly, if
you look at the facts,
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that is completely false
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because as I
said, in the first case
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he only waited five days.
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In the second case,
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he had known the policy
had been in place since 2012.
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His attorney should
have known about it,
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and even if he didn't,
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he was sent a letter
about it weeks before.
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And he waited up until
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I think it was the week before
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he filed an
appeal in state court,
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and then he filed his
appeal with the Supreme Court
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or with the federal court
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just a day before his...
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So them saying
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that in his case, he was timely
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is completely
inconsistent with the facts.
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But it would seem to me
in the interests of justice,
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since these are cases
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that have gone
to the highest court
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for the particular look-see,
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and since most people
spend years on death row.
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Justice is still served by,
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this is now
extraordinary by definition
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that the high
court's looking at it,
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wouldn't they
allow extra breather time
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to resolve the real issue,
whether or not it came to time.
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Well, they should.
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Because the court
moves slow anyway.
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They should do that.
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But again,
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they like to resolve
things on technical grounds
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when they can to
avoid the merits.
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Which also goes against my view,
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I don't see that
you get a fuss with me,
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but I'd have to throw at it.
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I see the code
reluctant most times.
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They'll dodge it if
they can at all counts.
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And then they get into trouble,
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like the case that lies behind
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one of the biggest
social changes of years,
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the Lawrence v. Kansas case,
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they would try to dodge it,
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they instead
looked at privacy issues.
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And by settling
privacy, which they had to,
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they empowered the
whole gay movement.
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But they weren't intending,
I can't see any evidence.
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They intended to open the gates
on gay behavior at the time,
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they might
judge differently now.
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That there was
unintended, in other words,
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they were
unintended consequences.
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Right.
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But they weren't intending,
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you know, great
far reaching decision.
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Well, it's interesting.
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I also pointed out in my article
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that that Tom,
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I mean, sorry,
Roberts, the Chief Justice
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has developed a
reputation of overruling,
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they call it stealth overruling,
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overruling a case
without actually overruling it.
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And how do you that?
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So well, different ways,
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making a case a really narrower,
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or there's a lot
of different ways
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that it can be done.
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But the interesting
thing about this case
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is the way that the court just
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about faced so suddenly.
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And there's a lot of speculation
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about why that was done.
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And some I read a blog
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that I was just actually quoted
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Ilya Somin from George
Mason University law school.
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I know that name, I
must have read article.
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Yeah, he has a blog
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that was actually quoted
in multiple and his viewpoint.
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He said there are two possible.
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He said,
discounting the stated reason,
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which was timeliness,
which doesn't make any sense.
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There are two possible reasons
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that one of them
is just Islamophobia,
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because that was the
first case involved a Muslim
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and the second case
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involved a white
Buddhist, that was...
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Now Buddhism is
no threat to anyone.
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That was the
difference in the cases.
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But he said,
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it was seemed
most likely to him,
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there was a huge outcry
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about the
original Dunn v. Ray case,
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both from the
right and the left,
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the right was concerned
about Free Exercise rights
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because he was denied
the right to have his imam,
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which is clearly a
free exercise issue.
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And, of course,
the left is concerned
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about the establishment clause,
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so both sides were
railing against this decision.
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So he comes out,
and I agree with him
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that it really
was the court saying,
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oops, we made a mistake,
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we need to do
over to make it clear
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that we're not eviscerating
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the concept of do
not mention the trial.
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So at the end of the day,
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it's not as bad,
it's just a bad chapter,
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but that is not bad in future.
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No, it actually is...
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However, it's interesting...
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Oh, the other
interesting thing about the case
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is that Thomas's
view of non-neutrality,
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his distinction between
monotheism and non-monotheism,
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the interesting
thing about this case
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is that it
involves a non-monotheist,
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and he was given equal rights.
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So it makes me wonder,
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you know, I don't know
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what Kavanaugh's
position is on this issue,
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but it makes me wonder
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if Kavanaugh is
not a subscribing
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to Thomas's view on...
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Of course, it's
also different in facts
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because Thomas's view,
at least to this point,
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has only involved
ceremonial issues,
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like prayer in
Congress and stuff like that.
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I hope you're wrong
about fellow travelers, Thomas.
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And I don't read everything,
but I get the impression,
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Thomas's views
are not very nuanced.
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No, they're not.
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So, and most judges are,
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so I can't see...
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But it'll be interesting
to see how Kavanaugh shapes up
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because so far,
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it was a surprise to me
to read that concurrence
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and to see that he was clearly,
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of course, that is the law.
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There's no question
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that that is what
the law is right now.
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So if you're not
going to overrule
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or set aside the law,
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you have to accept that.
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But the fact
that he would openly
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cast his vote on that side
is an interesting development.
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And hopefully, it's a
good sign for the future
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although I'm
cautious about that.
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Just to jump off, and
perhaps from your point,
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a radical different direction,
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you know, Christianity,
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or Christians in the
early days of the religion,
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or of the movement,
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and the early days
of the Roman Empire
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were regularly executed.
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You read Revelation,
and at the end of time,
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Christians are going
to face execution again.
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Do you see reason to be troubled
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that the US
persists in hanging on
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to capital
punishment the way it does,
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and then these
loaded discussions,
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do you think we're
in a never, never land
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where the court could end up
endorsing the ultimate penalty
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for religious
dissidents in the US?
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It certainly could happen.
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I don't see any
evidence right now
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that that's likely to
happen in the immediate future,
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of course, there
could be a crisis
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that changes everything.
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And I don't really see
the death penalty per se
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as being a big issue
as far as that's concerned
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because if there's a crisis,
00:10:05.53\00:10:08.80
all bets are off, things change.
00:10:08.84\00:10:11.07
So I don't see that immediately.
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I think it would have to involve
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a precipitating crisis.
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But I do see that definitely,
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the court is moving in
a very dangerous direction
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in terms of
restricting religious rights
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for people who
are not Christians,
00:10:26.55\00:10:28.66
and that's my biggest concern.
00:10:28.69\00:10:31.06
Years ago, visiting
the Dominican Republic,
00:10:34.66\00:10:36.97
I was told
they're part of the story
00:10:37.00\00:10:40.24
of the extermination
of the native populations
00:10:40.27\00:10:43.94
of the lands that
Columbus had discovered.
00:10:43.97\00:10:47.38
And one of the last
chieftains they captured
00:10:47.41\00:10:51.68
was taken to his
point of execution,
00:10:51.71\00:10:54.55
where they intended
to horribly mutilate him
00:10:54.58\00:10:58.55
before they killed him.
00:10:58.59\00:10:59.95
And they offered him the chance
to convert to Christianity.
00:10:59.99\00:11:02.69
They said, "We'll give you
a quick death if you convert,
00:11:02.72\00:11:05.69
and then you go to heaven."
00:11:05.73\00:11:07.80
And he said, "Will there
be any Christians there?"
00:11:07.83\00:11:10.27
And they said, "Oh, of course,
00:11:10.30\00:11:11.63
all the
Christians will be there."
00:11:11.67\00:11:13.00
And he said, "No, no, kill me.
00:11:13.03\00:11:14.37
I don't want to go there."
00:11:14.40\00:11:16.40
We need to be careful
00:11:16.44\00:11:17.84
as a so called Christian nation,
00:11:17.87\00:11:20.41
not a Christian government,
00:11:20.44\00:11:22.14
in the West and in particular,
in the United States,
00:11:22.18\00:11:25.08
where there is the death penalty
00:11:25.11\00:11:26.45
that we don't project
00:11:26.48\00:11:28.75
a very unchristian
attitude in even administering
00:11:28.78\00:11:32.12
the severest of civil penalties.
00:11:32.15\00:11:35.32
We're all
creatures of a Creator God.
00:11:35.36\00:11:37.93
We have dignity,
00:11:37.96\00:11:39.29
and we have
rights to acknowledge him
00:11:39.33\00:11:40.66
particularly at that
moment when some civil power,
00:11:40.70\00:11:44.47
some civil entity
deprives us of life.
00:11:44.50\00:11:49.90
For Liberty Insider,
this is Lincoln Steed.
00:11:49.94\00:11:52.81