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Uncle Bobby's Wedding is a story of a same sex wedding where a niece worries that her uncle will not have as much time for her after he gets married. It's one of five books with LGBTQ characters at the center of a Supreme Court case, and it seemed more like book Club during the Supreme Court oral arguments when liberal Justice Sonya so to Mayor and conservative Justice Samuel Alito gave competing interpretations of the book.
Because I'm looking at the books. I've looked through all of them. They have two men Little Bob Bobby's Wedding where they're getting married. One is black and one is white. In this rendition of the book, I had one with mice. The two male mice looked identical to me. Is looking at two men getting married? Is that the religious objection?
I don't think anybody can read that and say, well, this is just telling children that there are occasions when men marry other men. Uncle Bobby gets married to his boyfriend Jamie, and everybody's happy and everything is you know, it portrays this everyone accepts this, except for the little girl Chloe, who has reservations about it, but her mother corrects her, No, you shouldn't have any reservations about this. As I said, it has a clear mora, It has a clear moral message.
Just answer my question is looking at the pictures, is there any affidavit from any parent that merely looking at people getting married holding hands, none of them are even kissing in any of these books. The most they're doing is holding hands. That exposure to that is coercion.
Welcome back to the culture wars at the Supreme Court where public school parents are objecting to incorporating LGBTQ friendly books into elementary school curriculum on religious grounds, and after two and a half hours of oral arguments, it seemed clear that the Conservative justices will back the parents who say, my guest is First Amendment law expert Caroline Malcorbin, a
professor at the University of Miami Law School. So, Caroline, in addition to Uncle Bobby's wedding, which was thoroughly discussed at the oral arguments, there's a book called Pride Puppy about a puppy who gets lost at an LGBTQ pride parade. Another called Born Ready is about a transgender child who wants to identify as a boy. The point being these books are not about religion, their stories with LGBTQ characters.
Yeah.
So, basically, the case that the Supreme Court heard oral argument on Tuesday morning concern a religious liberty challenge brought by parents who argue that they had a constitutional pre exercise right to prevent their children from reading books with LGBTQ characters. And from the tenor of the argument, it does seem quite likely that the Supreme Court will agree with them and grant them this as a constitutional right. And to be clear, these are parents of children in public school.
Did the Court readily accept the idea that, you know, books about a puppy who gets lost at an LGBTQ pride parade or a transgender child who wants to identify as a boy, that these are against the Christian beliefs of the parents.
So definitely the parents bringing them are religiously conservative, although they're not only Christian. I think there are also some Muslim parents as well. And the justices very much accepted the idea that having children read these books would impose a substantial burden on the parents free exercise, which is a stunning expansion of what it means for the government
to impose a substantial burden on someone's religious exercise. So originally, when we thought about government imposed burdens, it would be something like the government is preventing you from observing a tenant of your faith, like the government made it impossible for you to observe your sabbath or participate in the sacramental use of peyote, something that was really central religious practice.
The Rabbits Court has already expanded what counts as a substantial burden to not just view yourself violating a religious tenant, but for someone to endorse or facilitate a third party's violation of religious tenants. So we have the Supreme Court being very sympathetic to people who argue that baking a cake for a same sex wedding would be akin to adorsing the sin of same sex marriage or facilitating the
sin of same sex marriage. That first expansion was itself already quite a broad reading of what counts as a substantial burden. But what we may see after the Supreme Court hands down its decision in this case is just hearing about people who act in a way that's contrary to your religious tenants suffices to be a substantial religious burden, because that's ultimately what's going on in these public schools.
The children are hearing about the existence of two men getting married, or they become aware that there are transgender people in the world, and if that information is not accompanied by a condemnation of it, then it seemed like there were five justices who thought that that could amount on a very serious infringement on the parents' free exercise rights. I am willing to bet that there are at least five justices who thought that there is a free speech violation here.
I think there might even be six.
What I did say, at least five, though I would say I think Justice Gorsus was going for a different theory.
So what were the main concerns of the conservative about these books?
The main concern was that they were hearing about LGPT community without hearing the condemnation of it, and therefore, in their eyes, that equates to indoctrinating their children into accepting gay people or transgender people, and that is contrary to their own religions which condemn them.
Justice Sodo Mayor said, haven't we made it very clear that the mere exposure to things that you object to is not coercion. And then she talked about this book Uncle Bobby's Wedding, and she said that none of them are even kissing in any of these books. The most they're doing is holding hands. And then Justice Alito actually read from the book, saying there was a clear moral message.
His argument was, this book not all only articulate that these people exist, but it also conveys a message that these people are people, and they're okay, and there's nothing wrong with two men marrying each other. And that is what he equates to indoctrination of children in the classroom, which of course is not the only way to think about what those books are doing. One of the central goals of the public schools system is to train children to live.
In a democracy.
And one of the preconditions for us all coexisting together is that we learn that we're not all alike, and that even if there are people who are different from us, we should still treat them with dignity and humanity and record them the same respect that we ourselves would like to receive. And so I think the reason the school included these books in the first place is to try and teach that very basic civic lesson to little kids.
But that message that these books, again, they're surprisingly innocuous. I think the main point of the uncle Bobby's wedding was that she was a little upset her favorite uncle might get married and she wouldn't get to hang out with him anymore. And the message she learned is she didn't lose an uncle, she got another one. You know, that kind of message you often see in children's books.
But again, the very presentation of the LGBT community as regular people who we should not condemn as doing something against I don't know, God's orders is considered to be unacceptable to the religiously conservative families.
So the issue was whether the children of the parents who object could opt out of the classes that include these books. And apparently the school had tried that and found that it was not manageable.
So they argued that they had both the right to notice of when the books would be read and the right to off their children out if they were. And as you said, schools did try. They started off by attempting to accommodate everybody, and it really turned out to be unworkable. And it was unworkable. I suspect for at least a couple of reasons. Although again part of the problem these cases is there's not a well developed record, and so we don't know exactly how these books were
or were not you in the various schools. We just sort of have intimations of things that happened. And so one problem is with the notice because it's not always clear cut when a book might end.
Up being used.
Yes, the teacher might plan a lesson and use it, but a teacher might also say, okay, you know, Tony, it's your turn to pick a book. Which book would you like to read today? And Timmy goes to the bookshelfs and pulls this out right. So, especially in the younger grade, the attorney was trying to argue, you don't have like distinct lessons. Sometimes you kind of hits more flexible,
it's more flowing. So that's one issue, and then the other issue is, well, what if you know half the plas stops out, you have to have a whole nother lesson plan to deal with them, because you have to have someone to lack after the kids. You have to have an alternate lesson plan for them, you have to
have an alternate space for them. And if you have this kind of scenario multiplied by who knows what kind of factor and who knows what other kind of issues that parents might object to, it becomes absolutely unmanageable to run a school with all these opt outs.
The conservative justices, a lot of them couldn't understand why it was such a problem, but all three of the liberal justices focused on the line drawing problems presented by this.
Case, because again, the principle that they were arguing for is if there is something in the curriculum that a religious parent objects to on the grounds that it is contrary to their own faith, that they have the right to know in advance that that it's going to be taught, and the right to pull their children from the classroom. So there was no limit by age, there was no
limit by subject matter. And of course we live in an magnificently diverse kind of tree where people have all different kinds of beliefs, and so there was one line of questioning is well, what if parents object to interracial marriages,
do they get noticed? And what about if there are some object to interfaith marriages, What if some belong to religions that oppose having women who work outside of the home, Are they now entitled to notice any times there is a social studies class or a literagy class that features a woman who's worked outside of the home. What about parents who believe in the literal interpretation of the Bible
and take that to mean that evolution is false? Does that mean that they can pull their kids from the evolution section of the of a biology class or and this is another question that was asked, what if a parent objects to a teacher using the appropriate pronoun for transgender child in the class, does that mean that they can say, I don't want my child in this class,
I'm entitled to a completely different teacher. And the lawyer for the parents did concede that, yes, there were some parents who would find that to be the substantial burden on their own religious exercise if the teacher uses appropriate pronouns for another transgender child in the class.
And coming up next on the Bloomberg Law Show, we'll talk about the next religion case the Supreme Court is taking up next week. I'm June Grosso and this is Bloomberg. A divided US Supreme Court signal they will back public school parents who are seeking to have their children opt out of classroom lessons that incorporate LGBTQ friendly books. The court's conservatives suggested support for parents who say school children are being taught ideas that violate their families religious beliefs.
I've been talking to Professor Caroline Malacorbin of the University of Miami Law School. So what is the question that the Supreme Court is going to answer?
Well, the question before them is are these parents entitled under the free exercise Clause to have the right of notice and the right to opt their children out. How the court gets there may depend on which route the court takes, because there is more than one. We've been focusing on a very traditional one where the court says, well, this law is not neutral and generally applicable, it's sort of targeting religion. There's a substantial burden on the religious parents,
and the law fails to scrutiny. Under traditional doctrine, all three of those requirements must be satisfied. So again, the law is not neutral and generally applicable, but targets religion in some kind of way. Second, what we've been sort of talking about is does this requirement, does this book impose a substantial burden on the parents' right to practice their religions? And finally, can the government justify insisting that everyone read this book? Does it pass the scrutiny? Is
there a compelling government interest that everybody read it? And is there no other way the school can accomplish It's really important government interests that don't infringe on the religious parents' rights, And so it's quite easy to see how the court could answer all those questions in a way that would
lead to a right. Now, the alternate, which I mentioned briefly before, is something that such this gorstic seemed very fixated on, and under his approach, from what I could glean, is he wouldn't even bother doing a distinct analysis of whether reading the books imposes a substantial burden on the parent's religion, Because the first question is is this a neutral and generally applicable law? Does this target religion in
some kind of way? And I think he and some other justices were trying to build an argument that this rule was motivated in part by hostility to religion. And if he can make that claim, then he is going to argue you go directly to strict scrutiny. If there's some kind of discrimination against the religious parents, he would think that in itself is a substantial burden, and strict
scrutiny applies. So one way or another, the Quarter is going to say dist infringes on people's religion, and the government can't justify insisting on reading these books because ultimately they could read other books.
And Justice Skatanji Brown Jackson asked the question, do we want federal judges quote, flipping through the picture books and deciding whether these are appropriate for five year olds?
Yeah.
I think she's trying to motivate the very strong sort of balance of power issues and federalism issues, right because one thought is that education should be under local control, and it will be a little less under local control if the Supreme Court justices or deciding what books schools can offer without having any challenges to them and what
books they cannot. And of course also she wanted to emphasize that the decisions on the curriculum should be made by the school boards, who are democratically accountable to the people who go to those schools. I mean, the core of our democracy is that the people making little decisions are ultimately accountable to the people who put them into power. And if it's the school board making decisions, then it should be their decisions that people are able to vote on.
If it's the court making the decisions, well, the courts are not accountable to the people.
I almost don't understand why the Court took this case before the issue could percolate through the lower courts, before it's known how these books are going to be used in lessons or you know, how teachers plan to use them. I mean, it's so amorphous, it's just the books are bad.
I cannot answer that question, although it does seem part and parcel of a Supreme Court dedication to ensuring that those who belong to conservative religions pretty much get what they want, especially if it's at the expense of the LGBTQ community.
And just to that point, about a dozen cases in the past decade, the Supreme Courts expanded the role of religion in public life, sometimes at the expense of gay rights. So we had the Supreme Court in twenty twenty three ruling in favor of a Christian web designer who didn't want to create sites for same sex weddings, even though she'd never been asked yet to create a same sex
wedding site. You had in twenty twenty two the high school football coach they sided with who said he had the constitutional right to pray at the fifty yard line right after games. And then in twenty eighteen, of course, you had the famous case about the baker who didn't want to bake wedding cakes for same sex couples.
I can here more. Don't forget the city of Philadelphia has to do a lot. It's government funding to social services, even if they discriminate against LGBTQ parents. And your mention of the coach case, this is the case where the Supreme Court rejected establishment cause challenges to a coach that was praying in front of his students, his players, and some of them said they felt like they had no
choice but to participate. And I just want to highlight how the court was so dismissive of the claims of the players that they would feel coerced to participate when the coach who decides whether they play or not is praying, and they seem to say, well, he has their right to pray, and certainly no student would ever feel compelled to join in. That's ridiculous. There's no evidence of it. How could you even suggest something?
Right?
The really very dismissive of the idea that the students who are not Christians and who do not want to join in the prayer may feel like they have no choice. And yet in this case, the mayor hearing about something seems to be a gross infringement on someone's religious liberty. In other words, caring about an idea that people disagree
with is treated very differently. If it's conservative parents whose children are hearing about the existence of LGBT community as opposed to students who are actually present during their coaches prayers.
Is there a line that the conservatives won't cross? Where is it? I haven't seen it.
Yeah, and again I know you are slu raising. A slightly different point is are they going to be this accommodating to parents making religious claims when they don't agree with them?
Right?
So what if you have some I don't know, Unitarians saying I do not want my child hearing anything complimentary about Christopher Columbus because he was a you know, a savage colonizer. So you better give me notice and a right to opt out on any kindergarten, first grade, second grade, third grade lessons about Christopher Columbus, or maybe any of the plantis dors. We'll see if those parents claim get the same kind of treatment.
And there's another religion case coming up next week. The justices are going to consider whether to approve the country's first public religious charter school.
Yes, So the question is if the court does insist that this religious charter school must go ahead, will it do it on the grounds that it's ultimately really a private school, in which case it's not necessarily expanding it's already problematic doctrine that says if you fund a private secular school, you also have to make funding available to a private religious school, as opposed to ruling that said the government must fund public religious schools. That would be
astonished and devastating to public school education. But either way, I suspect it's not going to be a great outcome, But I think how it gets decided is going to
make a huge difference. I want to emphasize one more point about this argument that part of the mission of public schools is to teach children how to get along with all different kinds of people, and they're making that lesson impossible if they say there are some kinds of people who are so awful that it violates people's religion to even hear about them without getting a moral lesson
about how they're going to hell. And again, completely absent in most of the Supreme Court justice's mind is how devastating this kind of right would be for children who belong to LGBT families, children who are gay, children who are transgender. Right, why is half the class leaving when we're finally going to read a story about me? Why is half the class leaving when we're finally going to read a story about me? Is that really what we want for public school education to look like?
I haven't thought about that, Thanks Caroline. That's Professor Caroline Malacorbin of the University of Miami Law School.
No, I have no intention of firing him.
I would like to see him be a little more active in terms of his idea to lower interest Rate's just a perfect time to lower interest rates.
President Trump didn't about face on Tuesday saying he won't fire FED chair Edjr. Own Powell despite days of criticism over the Central Banks policies like this. Just five days before I don't think he's.
Doing the job. He's lake always do late, a little slow, and I'm not happy with him. I let him know it, and if I want to, he'll be out of their real fast.
Believe me, Trump is known to change his mind and his posture could shift yet again. So does he have the power to fire Powell? Joining me to answer that question? Is constitutional law expert Harold Krant, a professor at the Chicago Kent College of Law. The Federal Reserve Act says that members of the Central Banks Board of Governors can only be removed for cause. What does that mean?
It means that the president before you movese the governor has to show some kind of neglective duties, misconduct, something along those lines before someone can be removed from office. And more importantly, perhaps is that any kind of removal than can be second guests in a court? In other words, a court has the power than to determine whether the president had cause or not to a member of the Board of Governors.
So the law doesn't explicitly provide four cause protection for the role of FED chair. I mean, does it say anything about removal of the FED chair?
Well, it's pretty opaque with respect to what are the conditions upon which the chairman can be removed. We have a tradition, and the tradition says that the head of the Fed is protected, is independent, and that's what seems to be in the mind of the Congress that created
the structure. In other words, that we didn't want to have politics enter into questions about the interest rates and inflation and the money supply of the country, that it was important to separate politics from that kind of financial oversight. But on the other hand, if you just look at the words of the statute, there's a question that Powell could not be removed as a governor, but he might be able to be removed as head of the Board
of Governors. He is given a term, so you could say that Congress intended for him to fill out the term. But on the other hand, again, there is no explicit protections from removal.
So we're an uncharted territory. There's no precedence.
Here, there's no presidents, there's a there's a history, and there seems to be a widespread political view that it's important to keep politics out of the FED because you don't want to lower the interest rate or raise the interest rates for political reasons, because that may obviously undercut the best interests of the country. But we do know that the members of the Board are protected from at
will removal. But on the other hand, the Supreme Court, as you well know, has cut back on the power of Congress to immunize members of the government from at will removal by the president. So in fact, the Trump administration has come down and stated that it believes that all officers of the United States, which would include the members of the Federal Reserve, should be presumably removed at will.
And the Court will be hearing challenges to members of the National Labor Relations Board, to members of the Marriage Systems Protection Board presumably the next term. And they could well make a president which would cover somebody like the head of the FED as well. And indeed, the Court in the cell law case of a couple of years ago, held in particular that a single member head of an agency had to be removed at will by the president,
and that was for the Consumer Financial Protection Board. And so the question would be in what way is a member of the FED different, or at least the head of the FED different from the single member head of the Consumer Financial Protection Board? Arguments can be raised, but obviously the Court will be thinking about the FED when it makes those decisions later on next term.
Do you think the jump administration is specifically, you know, che challenging for cause by firing the NLRB board member and the Merit Systems Protection Board member. Do you think it's like making a concerted effort to try to expand presidential power.
It absolutely is, and it's making no bones about it. In fact, the administration sent a letter to the Senator Durbin of Illinois, who's the ranking member of the Judiciary Committee, in fact, stating just that that it believes that there is no such thing as an independent agency, that all agencies must bow to the will and oversight of the President, who is the single elected representative of the people, a top of our government.
Justice Roberts temporarily halted the lower court decisions that reinstated those two members while the Supreme Court is considering whether to take the case. Can you read anything into his putting those decisions on whole rather than letting them go forward.
Well, the the rationale of the Supreme Court's earlier decisions, which certainly cover the likely dismissal of the member of the National Relationshis Board as well as the American System Protection Board, if they would continue in that path. I mean, the real question that people have asked is will the Supreme Court slow down the process given the amount of power that the Trump administration has accumulated for itself, and then they rethink that something independence might be a good thing.
So I do think that it's very likely that the trend will continue to amass power in the administration and to the President in order to give the president more levers of control. The FED is a tricky issue. It's a tricky issue because politicians on both sides of the aisle have been careful historically to allow the independence of the FED and to talk about how important it is
to have this one position to be somewhat unique. And maybe the Court would try to carve out the FED as a unique exception, even though its pathway clearly is to suggest greater controls for the president with respect to all other executive branch officials.
I never thought that the case Humphrey's Executor would be talked about so much that nineteen thirty five landmark ruling explain how that plays into all this.
So in the nineteen thirty five decision of Pumper's Executor, the Court held that if you have an agency that is engaged in sort of what they called quasi legislative functions, which is rulemaking, or quasi judicial functions, which is adjudication, that Congressman once can protect those individuals from at will remove it by the president because some measure of protection would be important for good government to make sure that
those quasi legislatives and quasi judicial functions would be discharged with a great deal of integrity. The Court has since taken back from that precedent by saying, if it's a single member head, even if it's engaged in similar tasks, then the president can remove that individual at will. Now, the logic between separating individual members and multi member commissions is pretty thin. That's what Chief Justice Roberts relied upon.
So the question then is in these other cases, will the same logic of subjecting these agency officials to oversight by the president be extended to multi member commissions as well. So that's what we're going to see in the upcoming term from the Supreme Court. Whether or not they reconsider is a coast call. Again, they may be a little worried now about the aggrandizement of the Trump administration, but
we'll have to see. But again, the head of the FED is a little different because there is a multi member organization beneath the FED that's namely the Board of Governors. Seven members of the Board of Governors. So who knows what they'll say about the chief of that organization. With respect to the need for independence from the president.
Powell has said that he doesn't believe the cases that are working their way through the courts over Trump's firing of other independent federal board and agency members will apply to the FED, so suggesting even if the Supreme bourt rules for the President there that there might be some sort of carve out for the Central Bank. And some conservative justices have suggested that, yeah, I mean, the FED is.
It's not a typical regulatory agency. I mean, it does have some regulatory functions over the banks, but obviously is most important thing is to affect money supply and to try to figure out what kind of curbing inflation in terms of interest rates and so forth. And so it might be that the court would say this is a one off, that this is a unique mixture of authorities.
It's based upon deep economic expertise as opposed to a traditional regulatory agency and carve out the FED for that reason won't be easy, but the Court might be tempted to do that, and that would be an understandable compromise.
Well, I mean, like.
Wall Street looks at the independence of the FED as sacrasanct.
That's right. Politicians on both sides of the aisle have talked about the FED being above politics and how important it is for it, said to be removed from the normal political channels. And so that's why the President has ruffled so many feathers by periodically threatening to fire power whom he in fact appointed during this first term.
Well, at least today, this is not a question we're facing. But thanks so much. How that's Professor Harold Krant of the Chicago Kent College of Law. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law. And remember to tune into The Bloomberg Law Show every weeknight
at ten pm Wall Street time. I'm June Grosso and you're listening to Bloomberg