Religious Rights Win Out in Clash With Gay Rights

foster care program. During oral arguments, some of the conservative Justice Is question Philadelphia's policy, while others like Justice Is Samuel Alito and Brett Kavanaugh were upfront in their skepticism. It's not about ensuring that same sex couples in Philadelphia have the opportunity to be foster parents. It's the fact that the city can't stand the message and Catholic Social Services and the archdioces are sending by continuing to adhere

to the old fashioned view about marriage. And what I fear here is that the absolutist and extreme position that you're articulating would require us to go back on the promise of respect for religious believers. Joining me as constitutional law professor Steve Sanders of Indiana University's Mara School of Law. Some people expected to split along ideological lines because of religious rights versus gay rights. Were you surprised by the

unanimous ruling? Well, I wasn't surprised by the unanimity of the ruling once I read the opinion and realized just really how narrow this decision is. It really does not break any new ground. It is more or less a straightforward application of existing Supreme Court precedent. And frankly, if the City of Philadelphia decides to make a fairly minor modification of its policy, it's possible that it could go

back to not doing business with Catholic social services. So the opinion seems to have been crafted to be as narrow as possible while being faithful to the courts precedents. That I think explains why it got the support of Justice Bryer, Justice so to Mayor and especially Justice Kagan, who I think would not have joined an opinion that would have resulted in what she saw was an inappropriate expansion of the rights of religious organizations. Like the Obamacare decision,

This case was argued way back in November. Do you think this decision took so long to come down because the justices, or perhaps Chief Justice Roberts, was lobbying to have an unanimous opinion. I suspect the main thing that caused it to take so long to come down was the fact that Justice Alito wrote a treatise. You know, Justice Alito's concurrence is by far the long gust of all the opinions. It was joined by Justice Gore, such

Injustice Thomas. Justice Alito makes a full throated argument in favor of a radical, really revolution in the Supreme Court's jurisprudence of the free exercise clause, and that would be to get rid of a thirty year old precedent called employment Division versus Smith. That was the larger question on the table in this case that the Court theoretically could have reached. The opinion of the Court said, you know, we don't need to reconsider a basic precedent in order

to resolve this particular case. Is they's a Justice Alito, really, you know, just sort of wrote a brief in favor of overturning employment of Division versus Smith, something that even Justice Barrett basically said she wasn't interested in doing in this case. So Smith is a decision written by conservative icon Justice Anti and Scalia. That's been the target of

religious rights groups recently. Why so, that's correct because employee division versus Smith basically said, if a law is neutral and if it's generally applicable, if it's just a law that sort of everybody has to obey, it doesn't target religion in one way or another, then even if that law impinges on your religious practice, basically too bad. A religious believer is not a law unto himself or herself.

Justice Scalia rode, And so, if there is a truly neutral and generally applicable, let's say, gay rights law, the fact that a business owner or a social service agency believes that complying with that law violates its religious liberty is not good enough to kick it up to strict scrutiny to demand more of the government to justify that law. That's what Justice Alito and Justice Thomas and Justice Gorse

would like to change. They would like to make it easier for religious believers to challenge any law that they

believe in hinges on their religious exercise. What the court found in this case, in the Fulton case, was that the law was not actually generally applicable because it allowed for the possibility of exceptions to the non discrimination policy, and the fact the city wasn't willing to get Catholic Social Services an exception meant that Catholic Social Services wasn't being treated equally, So that did kick the level of scrutiny up to strict scrutiny because religion was being treated

in a disadvantaged way. Basically, all the City of Philadelphia has to do is get rid of that provision that indicates that the Social Services administration can make exceptions. If it makes clear the non discrimination provision applies in a blanket way without any exceptions, then Catholic Social Service agency will have to choose whether to be bound by that or whether to not do business with the city. That's assuming the city decides to go ahead and do that.

How political pressures and other things made forced the city to just sort of keep the status quo. As we discussed before, this sounds a lot like the Masterpiece Cake Shop case where a baker refused to make a wedding cake for same sex couple. There's Supreme Court there refused to decide the central issue. Did this case clear that up at all or is it still nebulous. It really didn't. This case is a little bit different because Masterpiece Cake Shop.

In that case, the baker, recognizing that this old precedent of employment Division versus Smith made it difficult for him to succeed under the free exercise clause, try to free speech argument basically saying that his cakes represented expressive speech. That was quite a novel argument, and as you say,

the court essentially didn't reach that. The Court decided it on a much narrower basis that this baker had been sort of mistreated during the adjudication process, that his religion had been disparaged, and government doesn't get to do that. But it dodged making a statement about the larger question

of free speech law when it involves religious speech. This case is similar in fact, Justice Alito's opinion sort of analogized at Masterpiece, and that this decision Fulton was focused on the free exercise clause, not the free speech part of the First Amendment. It's different than Masterpiece in that way, but it's similar in the sense that this is really a decision that only applies to the specific circumstances involving this agency and the City of Philadelphia. It doesn't break

any new ground. It doesn't expand the meaning or the scope of religious liberty beyond what the Supreme Court has already said in its precedence. Some are calling this a setback for gay rights. Do you agree? I think that's

probably an overstatement. So one way of viewing the situation is that cities like Philadelphia and other government agencies should take a hard line and say any time any social services provider, any business, any private organization refuses to respect the rights of gay people, they must give up their religious beliefs and they must tow the line and and

honor the government's nondiscrimination law. One thing that may have been going on in the background here that may have also been been persuasive to the justices is um no gay couple in Philadelphia had ever been turned away from

the foster system. The way it worked was if Catholic Social Services decided they couldn't certify a married, same sex couple to be a foster parent, they simply referred the couple to one of twenty some other agencies in the city of Philadelphia that did the same work for the city. So I think what we see here is maybe an argument that look, no gay couple was actually discriminated against. Probably no same sex couple would ever be denied the

right to foster a child. Um, there might just be a slight delay because they'd go to a different agency. But that allows Catholic Social Services to stand by its religious principles. So I guess I would disagree that this is a big, meaningful setback for gay rights. If you are subscribing to a sort of absolutist view of non

discrimination laws, then maybe you don't like this decision. As a practical matter, this decision probably represents the kind of accommodation that even some liberal scholars have been calling for that allows religious organizations to be faithful to their principles without doing any actual practical harm to the ability of same sex couples to function in society and to be treated equally. But this is another in a long line

of victories for religious groups of the Supreme Court. This is a court that has taken a very sympathetic and expansive view of religion. Has protected religion, whether it's a case challenging something as an establishment of religion, or religious organizations or religious people saying that a law impinges on their free exercise rights. I think your impression is not wrong.

The law has evolved in recent years in a way that is increasingly um sympathetic to religion, increasingly insists that religion be treated the same as other kinds of functions and not be disadvantaged in some way. It's entirely likely that more cases like this are going to keep coming to the Supreme Court. This decision didn't break any new ground really in advancing the religious liberty rights of religious believers.

It's simply found a way to fit this situation into the Court's existing law, which says religion can't be singled out for disadvantageous treatment, which is what the Court thought was going on here. But you know that this opinion also doesn't signal that the Court is closing the door

to other theories and other claims of religious discrimination. So the decision announced the same day the Obamacare case is sort of largely seen as the Court saying, look, enough of this, We're just done with the challenges to Obamacare. This decision more or less maintains a sort of status quo. Thanks Steve. That's Steve Sanders of Indiana University's Mors School of Law. The effort to lift The Biden administration's moratorium on federal lease sales got a surprise win in federal

district court. On Tuesday, a federal judge in Louisiana granted a preliminary injunction lifting the administration's moratorium on new lease sales for oil and gas development on federal lands. Joining me is Brandon Barnes. Joining me is Brandon Barnes, Bloomberg Intelligence senior litigation analyst. So Brandon tell us about this decision.

We had an interesting decision coming out of the Louisiana Federal court this week, and the judge put a preliminary in junction in place, granting a motion request from thirteen different states that had basically asked the court to put on hold the hold that the President Biden's administration put in place with respect to the federal government holding oil and gas lease sales, which is basically property that the federal government owns or holds that they then leased back

out for oil and gas development like Gulf of Mexico or cocaine lead in Alaska, or on shore for someam areas like the Permian Basin in New Mexico. The judge decides there'd be irreparable harm. How so isn't it just money involved? Well, Uh, economic harm can be one of the factors that goes into the irreparable harm calculus for

preliminary junctions. We've seen it in other cases here. Since you had the Stewards being the thirteen s case, the plaintiffs for these thirteen states, part of their standing, part of their ability to bring this claim revolved around the fact that they garner a significant amount of money from these federal oil and gas leases. They have a there's a sharing agreement for some of that revenue, there's royalties involved for them, so it's a significant part of their

business at the state level in their budgeting process. But also the court took a new account of a fair amount of you know this idea that there would be job losses at some point and that would impact the states as well. So what is the Biden administration doing? Now? This isn't about saying no, no more leases here. This is about wait and see, let's let's figure this out. Yeah, it's been a pretty common tactic for presidents over the years.

Most presidents have done it with different programs where and politically it's it's you know, a smart middle ground, because what you do is you come in and you say, wait a second, we need to take a look. We need to take a look at this. Do our study, check it out. Make sure that you know we're appropriately in this case protecting all the people. Were getting the amount of money that the people deserve out of these private companies who were doing this development, and so we'll

do a review. The review process has been going on since essentially the decuative Order came out in January this year, and it doesn't really have a set end time, and I think that's part of the problem. Not explicitly, but certainly the oil and gas companies and the States are looking ahead and thinking, well, that's going to present a major challenge later on once the inventory starts to draw

down in terms of new leases and new properties. But right now, they haven't suffered any harm at this point. You wouldn't think so from the company perspective. A lot of the companies opted to start to bulk up on the leases and permits before the Biden administration came in, especially towards the end of last year. As you know, President Biden was making his way around the campaign trail and making promises that we were going to put a moratorium in place or take another look at this, especially

with respect to the horizontal drilling and fracking. So there's a backlog. I think that the government in their similar filings reported that the backlog is seventy permits to drill,

not just leases, but actually approved permits to drill. Now that's not abnormal given these programs that the drillers are putting in place last for a certain period of time, because you need to have a good pipeline of wells to drill so that as your production declines on your current wells, you have the other ones coming online, particularly for horizontal drilling, where you can extend those laterals further into contiguous properties that maybe you didn't have before, and

that helps sort of smooth out the economics of drilling in a certain area. The royalty rates for drilling have been the same for a century, so the Biden administration might think about raising them. That's certainly on the table, I think, particularly Interior has made some of those statements. That's an easy middle path to discuss what's going on here.

You know, the other ideas that maybe they need to tighten up from the environmental review process they're doing for these is they're pretty boilerplate, and they've been hammered in the courts recently in a couple of different cases around prior leases last year, and so the ideas maybe they might try to tighten up on climate change analysis contribution of greenhouse gasses from from these activities in addition to

looking at the royalties. But the judge based it on that the Biden administration needs congressional approval to stop and

think about this. That's right. So the real crux of the prelimary injunction opinion revolved around the fact that the Outer Continental Shelf Act, which is what essentially allows the federal government to run these offshore acreage s lease sales, and the Mineral Leasing Act, which is the onshore version of that, both of them have specific statutory requirements that, Okay, for Outer Continental Shelf Act, you have to do a five year plan. That five year plan lays out exactly

how many lease sales you're going to have. Once that is a final rule from Interior, then you run those leases. And then Mineral Leasing Act similarly says you have to run at least quarterly lease sales and every year and and go forward in that way. The allegation which the court grabbed onto was, you know, the Biden administration, as the president, the executive branch doesn't have the power to come in and say we're stopping that because those are

coming out of the legislative branch. That would be Congress, who has the power to do that and therefore put the pulinary injunction in place. Now, so this is a judge in Louisiana issuing a decision that covers the entire United States and nationwide injunction from Louisiana. That's right, you know, it's um as justice courts such as called them cosmic

injunctions because they apply to the entire universe. It's been a practice that got a lot more attention under President Trump's administration, particularly revolving around to the immigration changes that he was trying to put in place, different policies at the border, and the use of them has increased over time. The ideas there's that district court, which is your lowest federal court, putting something in place that impacts the entire country.

It's an interesting one. I think at a certain point, you know, you're just reading long of your articles because it becomes academic. In practice, these are allowed, and you can have competing ones because there's a sort of a coequal jurisdiction across different district courts, and only up until such time as you have a more supreme court, which would be like an Hills Court for the next level of obviously the U. S. Supreme Court making a different

decision or confirming that decision. Do you then get into a place where you might have multiple jurisdictions agreeing. So it's allowed. Uh. Some people don't like it. Others look at it more as as a legal academic issue that can be discussed at, you know, in ivory toilers. So either way, we have an injunction in place, and whatever happens in other courts, which there's another court considering the same issue in Wyoming right now, it doesn't really matter

until we get to the next level. So the Interior Department said, we're reviewing the judge's opinion and will comply with the decision. Does that mean they will not appeal? Uh? I doubt that. I think that they will appeal. Certainly they're people who would be happy to appeal for them with an interest in this. As there were multiple interveneers at the district court level. From the environmental interest side, I would expect them to appeal. You want to preserve

your rights going forward anyway. But in one sense, you know you're appealing a preliminary injunction, so the case is still alive at the district court level anyway, so you can do it pretty quickly. But you know, they do have a duty to abide by what the court said in the in the very near term. And the fifth Circuit that they'll be appealing to is the most conservative circuit in the country. Do you have any inkling as

to what it might do. Well. It's interesting because you know, I didn't credit these preliminary injunction motions with much chance of success, largely because it's it's very difficult to convince a court that a temporary by its definition, a temporary hold or moratorium for further study, is something that's final enough for court to grab onto. But they did that

here and and the court. You can tell that the court knows that this decision was on the edge because you don't normally see a four you for page opinion on a preliminary injunction motion. And the court spent a lot of times justifying the idea that this is a final agency action, and there's plenty of support for that, and the court went through a full page of citation to show that. But there's certainly supporting the other side.

So I think that this is the case where you've got difficulty at both prongs of the preliminary injunction requirements and it's a close call. Now, usually the close call does go to the court, so maybe in this instance

the Fifth Circuit would agree. But I don't think that the preliminary injunction itself is probably that impactful because this is going to have to also play out at the district court level on the merits part of the case, and by the time we get through that, I fully would expect that the bid administration would already have a solution to this out, whether that's holding those least sales while working on new rules or you know, going through

some other avenue. Um. I think that the timing is it doesn't necessarily force easily sales to happen right away. Thanks for being on the show, Brandon. That's Brandon Barnes, Bloomberg Intelligence Senior litigation analyst. You can read more of Brandon's analysis by going to be I Go on the

Bloomberg terminal. Pro Football Hall of Famer Shannon Sharp was discussing the trade rumors around then Atlanta Falcon starwide receiver Julio Jones during his Fox Sports show Undisputed, when Sharp decided to call Jones and ask him live on the air what we call it as well? Ask him, yes, I do right now? Are we calling? Okay? Well, really hope he answers here, Julio, have the guts to pick up the phone. Yeah, all right, Julio, Lou you want to go to the Cowboys, Julio? Or you want to

stay in Atlanta. Jones was apparently unaware that the call and his revelations were being aired live on TV. Now no lawsuits have been filed, but theoretically speaking, good Sharp or Fox Sports be sued. This week, Massachusetts Supreme Judicial Court upheld the dismissal of Summerville Mayor Joe kurt Atoni's lawsuit against bar Stool for recording and publishing a phone interview because of his consent. So a lot depends on what states rules are applied in the case of a

recorded conversation. Here to discuss the legal implications of an ambush interview is Daniel Novak, a publishing industry attorney and chair of the New York State Bar Association Committee on Media Law. Let's get some basics first. The rule in most states is that only one party has to consent to a recording. So does that basically mean you can

tape any conversation if you're in one of those states. Yes, and no. If you are in the majority of states that we call one party consent, as long as you are a party to the conversation, you should be okay. But where it gets fuzzy can be where you're not a party, and so being one party or two party consent states are sort of irrelevant if you're not yourself

the person that's engaged in the conversation. Now, most jurisdiction would just look at whether or not the people that were having the conversation had a realistic expectation that it would be between them. And so if you're sitting at a restaurant, you know, crowd a restaurant next to a couple and they're talking and you know everything is with an ear shot, it could be okay to record potentially because you would say that anyone in that room could

have heard that. So it gets a little tricky when you're not a party, but if you are, then it becomes relatively straightforward. But on disputedy is taped in California, which is a two party consent state, tell us about the law there. So California, despite being very media friendly in many respects, they have one of the best what we call anti flap laws that discourages plaintiffs from bringing

baseless defamation suits. They happen to have a more restrictive recording statute, and so California is one of those two parties states. I think there's about maybe a dozen or so of them, and so in California, what jan and Sharp did has criminal and civil ramifications. However, the call presumably went to Georgia. I don't actually know where really I was at the moment, but for the sake of argument,

he was based there at the time. And so it created a clash of laws, because when you look at two different parties, it's not always a given the law of which state would apply. Logically, it seems like the law of the state where the conversation is being recorded should apply. Well, it's tricky because you would say it's being recorded in California. Right. The arguments, by the way,

are persuaded on both sides. One side of it would be, well, look, why are protecting someone Jones and this instance whose own state says this is sign have at it, you know, record if you wish at the behest of the state, you know California that has no interest in protecting Georgia residents. On the other hand, California could have an interest in saying, well, look we want to discourage this type of behavior on the recorder side, right, it's not just about protecting Georgia residents,

is actually just telling California residents don't do this. And one of the factors that course have looked at as well, how feasible is it for people to sort of moderate their behavior based on the location of the person they're either calling or being called by. You could be calling someone to record them. You could similarly decide that when

someone calls you to hit the record. And so there was a case recently where a Georgia company was calling California residents and so not only did California have an interest in protecting their residence from being recorded, but the court found that it wouldn't be too untenable for a Georgia company to know who they're calling. Most people know who they're calling, and so it wouldn't be unreasonable for a Georgia company to say, well, look, this calls a

California resident. We need to alert them that the call is going to be recorded. If they don't like that, they can hang up the phone. So in that circumstance, the equities all sort of lined up. But you could see how when it's reversed and it's a California resident calling a Georgia resident, it gets a little trickier because

it again it becomes about discouraging. And here in this instance, yes, Shannon Sharp probably could know that his target within Georgia's but not everybody is going to have the presence of mind to do that quick mental calculus of where they are. And so the court in California might conclude, we don't want Shannon Sharp to have to consult, you know, Alexis Search to figure out what Julio Jones residences or ask him, hey, are you on vacation right now? Maybe cross state lines

that sort of thing. You know, it's the better policy is probably just a discourage it outright, and so, like I said, a court could go either way on that question. Does there have to be an expectation of privacy? Because going back to what you said in the beginning about let's say a conversation in a restaurant. Here, you're a football star talking to a guy who does a sports show on TV. I mean, do you have any expectation

that what you're saying is not going to be recorded? Yeah, and it feels like splitting hairs, But but he does. He has an expectation not in the content of his speech, but literally in the sound and reproduction of it. And so it sounds funny that that would be what the tipping point is. But California law does not want people

using electronic means to record people. And so rather than trying to have an analysis that invites all these complicated factors like what was the objective expectation of both sides, what was their subjective beliefs, etcetera, California has created this bright mind rule, which is, if you want to preserve this conversation for posterity, you need to ask the other side or let them know, and then again they can

decide what don't they want to continue? And that's why you know, when you and I receive calls that are automated, if it says this call will be recorded, and that's your cue. If you don't like that, hang up the phone. What about Fox Sports because it's the deep pocket here. If it were sued, do the same factors come into play or are there other factors? So Fox Sports is an interesting sort of extension of this because in the vast majority of recording and wire tap cases there's an intermediary.

So if Shanna Sharp was just the next player who had recorded his friends conversation and handed it to Fox Sports, Fox Sports will be protected under the Supreme Court ruling in a case called part Nicki versus Bopper, And in that case they essentially said that if your hands aren't dirty,

that you're not going to be responsible. And that's just designed to give them the news media some breathing room because oftentimes the most important material of the public interest in the chain of title, there's been something that's gone wrong in terms of legality, and so you can't police the media for accurate reporting on a stolen you know,

or recorded material. You know. That's all of leak sporting, really right, and so here we have a difference because Fox Sports was live on the air, and there's the litional conduct. They're the ones that are hitting on one sense, Stantons hitting record on his phone or he's not recording it really, he's just talking out loud on speaker phone and you can hear how it Roy, it's really the recorder is actually Fox Sports, who has their cameras trained on on Shanna. He's miked up for audio. Now, you

could argue that again this is what's been reported. They weren't aware that you planned to do this, and so maybe you can find the room in your heart to sort of forgive them that this was like an emerging situation and and they didn't have the presence of mind to yell cut or you know, take it to a commercial or something. But the call lasted at about a minute,

and so at certain points you're all in. And so that the bart Nikki president and Maybew does not really protect them because again it's there's no transfer to a middleman. The live nature of these shows makes it difficult. Yeah, and I think it's just a consequence of the formats. But they shows, you know, they can be taped live, they don't necessarily involve a lot of careful vetting of material. You know, if this was a news program as opposed

to commentary, there's probably a lawyer in the building. You can say, hey, can I run this idea by you? And they'll say you need to get consent. And so, because this was not in their wheelhouse and Shannon Sharpe was probably going off book, I think that they just

didn't have the presence of mind. I would find on like that they had a lawyer standing there, you know, with like the red button, the way that you might in other circumstances like reality television where you think something could go wrong and you need to be able to be on a tent second delay or something like that. Now, I don't know what procedures they have in place. They could be on the delay. There could be all these ways that it could have been slowed down. And tell

us a little about the specifics of the California law. Here. It comes in under the specific California Anti Recording Statute. And I should say that it's not terribly renumerative. The statute I think said five tho dollars per a sense, or I think triple your actual damages and just like in defamation of privacy, it's very hard to assign a dollar figure too damages, and so the only reason I could see Julio Jones bringing a claim is just on principle,

and I think he's already been sort of vindicated. In the public side, people were upset that Sharp did this, and so it's not a high upside play. The actual legal side of it had some complexity, you know, like we discussed it's California law. Really that's why here. But you know people have sued. Bar Stool Sports was sued for recording. They won their case. It was it had a different fact pattern, but it wouldn't be the first time that somebody felt put off by being reported and

decided to sue. Thanks for being on the show. That's Daniel Novak, publishing industry attorney, and I know that ten v Val Sangakar is a co writer of your article on this issue. And that's it for this edition of the Bloomberg Law Show. Remember you can always at the latest legal news is on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify and at www dot Bloomberg dot com, slash podcast Slash Law. I'm June Boso, and you're listening to Bloomberg