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Cristian Farias

Cristian Farias is a legal columnist for New York Magazine where he writes about the intersection of law and politics...

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Joe Patrice

Joe Patrice is an Editor at Above the Law. For over a decade, he practiced as a litigator at...

Elie Mystal

Elie Mystal is the Managing Editor of Above the Law Redline and the Editor-At-Large of Breaking Media. He’s appeared...

Joe and Elie talk to Cristian Farias about producing a legal podcast non-lawyers listen to, and explaining the Supreme Court to a law audience.

Transcript

Above the Law – Thinking Like a Lawyer

How To Explain The World To Non-Lawyers

10/19/2017

[Music]

Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.

Joe Patrice: Hey, welcome back to another edition of Thinking Like a Lawyer. I am Joe Patrice from Above the Law; with me as always…

Elie Mystal: I was thinking of wearing my — sorry, I am Elie.

Joe Patrice: Yeah.

Elie Mystal: I was thinking of wearing my swimming trunks today.

Joe Patrice: Okay.

Elie Mystal: Because even though it’s the middle of October we’re all going to die. There is no f’ing reason for it to be this hot right now.

Joe Patrice: Well one, it’s early enough in October it can be this warm.

Elie Mystal: It’s 83.

Joe Patrice: Yeah, yeah, I mean –

Elie Mystal: In October, yo.

Joe Patrice: Yeah, oh, do you prefer it colder?

Elie Mystal: I mean, no, because, you know, my people were brought here against the role, but —

Joe Patrice: Right.

Elie Mystal: — it’s apple cider season, not beach weather.

Joe Patrice: — yeah, but it can now be hot apple cider. Anyway, the point is, that’s Elie Mystal, who also is from Above the Law who jumped the gun and just really could not wait to complain about the weather. So yeah, we are here, chatting.

Elie Mystal: The weather is not actually what I want to be pissed about today.

Joe Patrice: Oh, okay.

Elie Mystal: Let me rephrase it. I would love to only be pissed about the weather today, but unfortunately I live in America.

Joe Patrice: Uh-huh.

Elie Mystal: So Joe, what’s your favorite sport?

Joe Patrice: My favorite sport is football, yes.

Elie Mystal: Yes, so my favorite sport is baseball because I am old like that, but my second favorite sport is football, only I can’t watch football anymore. Because given all of these National Anthem protests, it turns out that professional sports leagues owners have suddenly remembered that they are White and they’d rather have their players act like farm hands.

The hypocrisy — if you guys have been following along, the hypocrisy of Jerry Jones at this point, the owner of Dallas Cowboys, has reached maximum level. So Jerry Jones recently said that “any player who disrespects the flag is going to be benched and not allowed to play for the Cowboys,” which is such BS because Jerry Jones and the Dallas Cowboys of all people, are the first team out of the game to draft or sign players who have beaten their wives or beaten their children or just generally beat people. So Jerry Jones is literally going to sit here and say that if you disrespect women you can play football, but if you disrespect the flag, you are going to be benched. Are you kidding me with this guy?

Joe Patrice: I believe you are mostly referring to the signing of Greg Hardy who not only beat a woman but like threw her onto a bunch of AK-47.

Elie Mystal: Threw her onto a pile of guns —

Joe Patrice: Yeah.

Elie Mystal: — that guy can play for the Cowboys. Ezekiel Elliott who is just wrapped up in stuff can play for the Cowboys. Randy Gregory, who they drafted last year, who clears, anybody can tell is goddamn Nino Brown can play for the Cowboys, but, Colin Kaepernick can’t play for the Cowboys. That’s Jerry Jones’ position right now.

Joe Patrice: Yeah – no, that’s his position, and that’s a position of a lot of NFL owners, yeah.

Elie Mystal: How can you watch? Like, I can’t watch the sport.

Joe Patrice: Well, let’s pull back on sport.

Elie Mystal: I am Mark Pence at this point, I can’t watch the sport.

Joe Patrice: Let’s pullback on sport. I have watched a lot of college football on Saturday, that was fine. I mean, I’m kind of with you. I caught myself not really watching much on Sunday at this point.

Elie Mystal: It’s embarrassing, and again, this is just the latest thing that is embarrassing for the NFL. But, when they are not busy basically telling Black people they don’t have the rights to free speech, they’re busy telling White and Black people that they can be concussed for our enjoyment, and when they are not busy doing all those kind of things they are busy telling their players that it’s okay to beat and rape-ish women while they are stealing crab legs.

Joe Patrice: Right, and —

Elie Mystal: I was referring to Roethlisberger and famous James.

Joe Patrice: Okay.

Elie Mystal: For the sport fans.

Joe Patrice: Right, one of whom has been acquitted of things and the other revived just — I am now covering us evenly.

Elie Mystal: No. That’s being sued for defamation by Ben Roethlisberger wouldn’t make me a hero.

Joe Patrice: Okay, so at the end of the day – well, and let’s not forget ripping off local municipalities in bad deals so on and so forth. Yeah – hey, but the good news is, Trump now in retaliation was to change all the tax laws to penalize the owners because he’s mad about flags, and hey, I’m kind of like — I don’t really care why you’re going to penalize the owners.

Elie Mystal: Finally something we can agree on.

Joe Patrice: Yeah, so yeah, I mean, we can reach across the aisle. I can work with this man on these things.

(00:04:59)

Elie Mystal: I mean, look, it’s easy for me to say I’m not watching the NFL this year, my team is 0 and 5.

Joe Patrice: Oh man, and has no wide-receivers.

Elie Mystal: And has no wide-receivers anymore.

Joe Patrice: I mean, I guess, yeah, I think Sterling is supposed to be better, I think, but the other two are gone.

Elie Mystal: Yeah.

Joe Patrice: Yeah.

Elie Mystal: Yeah, the whole team’s gone, anyway.

Joe Patrice: Yeah — no —

Elie Mystal: Is that Lamar Jackson’s music I hear?

Joe Patrice: You’ve got a lot of — you’ve got a lot of needs. So moving on from that though what are we talking about, actually, we’re talking indirectly about you today.

Elie Mystal: Not just about me, but I am very proud of my association. So when I’m not doing this podcast and I’m not writing and I’m not taking care of my children, I also consult for WNYC’s and Radiolab’s More Perfect, which is a podcast about the Supreme Court. And so, we’re going to talk about that today with another lawyer consultant about how we put together on this awesome show.

Joe Patrice: Yeah, cool, so we’re going to take a little break, come back, talk some Supreme Court and some More Perfect, and hopefully, Elie can get over his Giants and their abysmalness, hey, don’t worry buddy, the Knicks are coming up soon.

Elie Mystal: Oh God.

[Music]

Bob Ambrogi: Hi. This is Bob Ambrogi. I’ve been writing podcasting and speaking about legal technology for over two decades. Monica Bay and I co-host a show called Law Technology Now, where we interview experts behind the newest legal tech. Tune in on iTunes, Stitcher or  HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com to learn why technology is improving the legal industry for lawyers, their clients and everyone, as it brings us closer to access to justice for all.

[Music]

Joe Patrice: Okay, we’re back, so let’s talk more about the Supreme Court here.

Elie Mystal: Today, we have Cristian Farias, who is a legal consultant on More Perfect among other things. Cristian, how are you doing?

Cristian Farias: I’m doing great. Thank you for having me on your show.

Elie Mystal: Thank you. So for people who don’t know, tell people what More Perfect is, so I don’t have to.

Cristian Farias: All right, well, first of all I know Elie used the sanitized word “consultant”, really what we are is nerds, and we just kind of know a lot about the court and the things that come before the court and everyone at More Perfect, they are wonderful people, a lot of them are producers, reporters who are just reporters. They’re not lawyers, they are based in New York so they’re kind of far away from the nitty-gritty of the court in Washington, DC.

And that’s kind of a good thing because when you have a show about the Supreme Court and it’s rarefied world and then you have all these really curious people who want to know more about it, nothing better than to – and have kind of this Radiolab crew, which basically they build their whole model on curiosity and just finding out a lot of archival stuff about stuff that is just amazing, and basically, that’s what the show is.

More Perfect is a show that’s primarily about the people and the issues that come before the court from a very human perspective, and god knows and probably listeners to this show know that the law is a bitch and is not human, a lot of times a subhuman, and in a sense, the show from what I’ve been able to listen and experience alongside Elie and everyone else is that it kind of humanizes a lot of these decisions, for better or for worse, because a lot of these rulings are truly awful and people get that. They listen to all that awfulness and it comes across and all of a sudden you go, wow, the court really did that and it kind of makes you think long and hard about the country and who we are as a nation.

Elie Mystal: One of the things I’d like to tell people about the shows is that there are ways that I can explain to my mother what one learned in law school. I would never say that these shows are dumbed down, but instead of that, I say they explain the law in a way that’s accessible for people who don’t have law degrees. That said, Joe, and I think you’ll back me up here, if you do have a law degree, there’s still a good chance that you can learn something.

Joe Patrice: Oh yeah, I mean, the legal history aspect of it is fantastic. I’m a big fan of the show. I’ve listened to at least — I’ve listened to three episodes so far that may not mean that I am up-to-date, if that doesn’t mean I’m up-to-date, I’m sorry, but I have listened to three of them so far this season. But, to take an example from last season, the kind of mental breakdown of a Supreme Court justice on a very difficult case was a story that for those of us who knew that case and what happened, you never would have known the behind the scenes breakdown that somebody went through; that was interesting, that was fascinating, that was why that was my favorite episode of last season because it got into the human world of nine people who’ve, well, as Judge Posner might say, they’re just people, they’re not super.

Elie Mystal: They are not so smart.

(00:10:00)

Joe Patrice: Right exactly, as Posner might say, some not so smart people like how they interact with each other.

Elie Mystal: Yeah, I think Joe is referring to the Baker v. Carr episode from last year. So, Cristian, our show is called Thinking Like a Lawyer. We try to tell our — we try to expose people to what it’s really like to have one of these brains and try to live a normal life. Cristian, during the production of More Perfect I caught you doing something and I’d like you to kind of explain that a little bit to our audience.

How do you go about — honestly, how do you go about explaining strict scrutiny to non-lawyers, because from a lawyer’s perspective, this is a very basic concept and yet every time that I’ve tried to explain it to a non-lawyer, they look at me like I have two hats.

Cristian Farias: No — yeah, I mean, if I try to explain strict scrutiny to a person on the street, it’s really hard. I can’t say I’ve mastered the art. I don’t think many lawyers have and it’s just one of those things where my script changes every time and I’m going to try to do it right now, if I may. Basically is, whenever the government does something the government has a lot of power to do many things, the government discriminates all the time with every decision, almost every decision that it makes, some people get affected by that decision, others don’t.

But the Constitution imposes some restraints on that power and whenever that decision discriminates on the basis of very particular categories, the courts are really skeptical and whenever that discrimination or that decree affects A, either a fundamental right, or B, discriminates on the basis of something immutable about you, whether you’re a woman, whether you’re a minority, whether you’re a person from a particular country, if that government action impinges on either of those two things then courts will take a magnifying glass and be really skeptical about that government action.

And in a sense that’s what strict scrutiny is. If the government action kind of affects those two things, then the courts are going to be really, really, really — they’re going to second-guess every move that the government makes and we see that a lot these days with the Trump administration. So I am thinking there would be a lot of strict scrutiny need to go around these days I think.

Elie Mystal: That’s such a nice way of putting it. I’d like to – look, the way that I think about it is that yeah, if you are Texas and the court applies strict scrutiny to you, you’re fucked, I mean, like that’s —

Cristian Farias: You’re done, yeah.

Elie Mystal: That’s _______, right, and so my objection really to strict scrutiny is that it’s supposed to be a method for analysis, but really by using that method of analysis, the court has all but already decided which side it’s going to come down.

Cristian Farias: Right, right.

Joe Patrice: I think it’s just such a footnote to history, anybody? Anybody? Caroline products jokes, all right, so yeah, there’s the legal nerd joke.

Cristian Farias: Who was it that said, “Strict in theory, fatal in fact” or something like that, and that’s what it is, I mean, you’re done. Like we saw that with the transgender military band that Trump announced by tweet. I mean, that thing is still on the courts but the way that thing came about, it was so haphazard and I’m thinking strict scrutiny is going to come in handy once the courts get around to analyzing whether that thing even makes sense from a policy standpoint.

So all signs point to it being struck down when it comes to that point, but yeah, totally.

Elie Mystal: Certainly if the Ninth Circuit has anything to say. That’s actually a good segue, Cristian, let’s actually talk a little bit about the current Supreme Court term. So let’s do this. What’s your favorite case this term and especially your favorite case that perhaps a lot of people don’t know about?

Cristian Farias: Okay, well, that’s kind of a — all I’ll say is that it involves cell phones, it involves warrants, it involves the Fourth Amendment, and basically it’s the cell-side cases that the ACLU brought to the Supreme Court. They’ve been kind of bubbling under in the lower courts for a while, and basically the Supreme Court has to decide whether the cops seek information about your location, where you have been based on all those little bits and pieces of information that your cell phone sends to cell towers, to the cell phone company whether the government needs a warrant before they can access that information. The court has suggested — some of the justices have suggested that they do, but there’s no clear law on it, there’s no final word from the Supreme Court.

So I think that’s going to be a huge case for us from a civil liberty standpoint and it’s going to get the justices to think about technology, think about phones, think about the government, perhaps tracking even their own movements. So usually when it comes to personal things like that, so they get serious about the instinct.

Elie Mystal: Joe, do you got one?

Joe Patrice: I mean, I do think the redistricting case is probably the most interesting one because it’s the only — it’s the only one that I have kind of good feelings about even though they are still guarded.

(00:15:04)

I think labor unions are going to cease to exist in any functional way at the end of this term. I think that class actions are going to be close to not existing at the end of this term. I feel like, yeah, in most environment, like, I think everything is going to go bad, but that one might not. So I guess —

Elie Mystal: So you think Kennedy is going to be on your side when it comes to redistricting?

Joe Patrice: I am very — I do maintain some reservations. I think that the way in which his first question was — his first statement was basically to take a dump all over the standing argument was problematic, but he moved past that quickly and seemed generally positive. So if he can find a way around that, I think that’s the answer.

Elie Mystal: My favorite case this term — well, my favorite under-the-radar case this term has actually already been argued twice, which is surprising; it’s Sessions v. Dimaya. Basically all the immigration cases that come up I think are going to be very interesting. Sessions v. Dimaya is a case that was argued when Scalia was still alive, then he died. Then they put it off and they’ve just heard it really within their first week for re-argument, and it’s really a case about whether — to my mind, it’s really a case about whether or not the Constitution can apply to immigrants, not illegal aliens, just straight up like legal permanent residents to this country, do they still have constitutional protections.

A lot of people will say, of course they do, and the people who say that are people who haven’t really paid attention to just how bigoted this country can be, and not just bigoted under the Trump administration, how bigoted this country can be regardless of who’s president towards immigrants.

So the actual issue in Dimaya is that there is a standard, lower courts have ruled that standard is probably in violation of due process as applied to this particular immigrant Dimaya, this Filipino immigrant, legal permanent resident. And really the question presented is whether or not a legal permanent resident can have a due process concern at all, much less is this particular standard, an unconstitutional violation of due process.

I really don’t know how the courts going to side on that. I feel like I know what Gorsuch is going to say, and I feel like I know what Ginsburg is going to say, but I don’t know how the middle is going to go, and so, I’m really kind of interested to see how that plays out.

Cristian, did you catch any of the Dimaya arguments?

Cristian Farias: I did not, but actually I do have something to say is that don’t be so sure about Gorsuch. A lot of people forget that one of his big cases as a lower court judge, the one everyone talked about is his confirmation hearings dealing with how, he wants to rethink the Chevron doctor and all that. It involved an undocumented immigrant who he happens to have sided with in announcing his ruling.

And so he has a kind of a very — I don’t want to say has a soft spot for immigrants but he does have a soft spot against the administrative state, and our immigration system is very much administrative.

So I think if he gets a chance to chip away at our current regime, the bureaucracy of immigration I think he is going to get his way and the way to do that is by siding with immigrant. He may not care about the immigrant, but he does care about sticking it to the government in certain respects, and in this area particularly I think we might be surprised.

Elie Mystal: Yeah, I don’t think Neil “I freeze truckers” Gorsuch cares about immigrants per se, but that’s an interesting problem.

All right, people are going to want to know, so let’s just do a FantasySCOTUS lightning around for a second, the travel ban case. Does it even make it back to the Supreme Court, and if so, how is it go? The new expanded travel ban, does it make it back and how’s it go?

Joe Patrice: I mean, I think it ultimately returns. The question with these travel ban cases is always what they’re being set up to be, I mean, this is a previous episode where we had Tejinder on, this was his point is that, when they are set up to say, we need an interim travel ban to promulgate real rules, and go through the rule-making process then the length of time it takes to get there is an argument against them, because why is this still an interim rule months and months after the fact.

If they set this up to be these are the rules we’re rolling with, then I think it makes it all the way up and enjoys a zesty challenge. But, what are these things going to be by the time we get down the road? What are these going to be — what’s the word I’m looking for positioned as basically.

Elie Mystal: Cristian?

Cristian Farias: Yeah. Man, that’s a tough question. I think the justices are not going to want to touch this with a ten-foot pole, mostly because not just because it involves Trump but because it will probably be a hot mess when they do, and they tend to avoid — at least for the most part they are trying to avoid this case like the plague and we’ve seen it. They are very likely going to send it back down the current version of the ban.

(00:20:00)

They’re going to dismiss it on mootness; and the big question is, whether they’re going to allow the lower court injunctions and the law that was made in those cases to stand. I mean, the Federal government wants to have their cake and eat it too. They want to — they don’t want to move forward with arguments in the Travel Ban 2.0 case, but at the same time they want to vacate the lower court rulings. So they lost all along in every round of litigation and yet they want the Supreme Court to scrap basically the Fourth Circuit and the Ninth Circuit’s ruling.

So I think there’s going to be a lot of jockeying inside the court to not do that. They are probably just going to dismiss it as moot and leave it there. The interesting thing though, if the court just dismissed the case as moot, the present case, the Fourth Circuit injunction and the ruling that goes with it stays as the law on the circuit and the same for the Ninth Circuit, and challengers in both cases already said that they’re going to challenge Travel Ban 3.0, it’s going to have a heavy lift.

Elie Mystal: Yeah, I think what’s going to happen eventually is that the Ninth Circuit will find a way to have an injunction against Travel Ban 3.0 as well because it’s the Ninth Circuit and they are done giving a shit, and then that gets back to the court. And then whatever the most — kind of what you’re saying, Joe, the most narrow version of disagreeing with the Ninth Circuit will be what the court rules fight for.

Okay, last case Masterpiece Cakeshop, probably the most interesting case this term, this is the potential depending on which side of the aisle you are on; the First Amendment case about a baker who wants to have his art and doesn’t want to use his art to promote gayness, gay marriage in this case.

Joe Patrice: Why the Baker is got to ruin everything? I mean, Lochner, Masterpiece, what is it with these people, like as a profession why you got to ruin everything?

Elie Mystal: They are artisans who have an actual really simple job. On the other side you’ve got a —

Joe Patrice: Hey, I watch Halloween Wars sometimes. Those people are working hard to make cakes that have pumpkin spice and still look like a monster and I defy you to say that they do anything less.

Elie Mystal: That is the widest thing you’ve said this month.

Cristian Farias: Is this really art though or it’s just kind of a service industry, they are just providing a service and everyone should be treated equally. And that’s — this one thing I’m having trouble with it. Is it really art, because that’s the argument that art receives First Amendment protection. But some people would contend, that that’s not art, that’s a cake that has some nice details and perhaps some fondant or whatever that stuff they put on it is, but that’s not art, it’s something that you do all the time and I tell you how I want it, what it should look like, and there’s very little of you that goes into it.

Elie Mystal: Yeah, I mean that definitely is the question. I mean, my big worry is that if this baker can say that his cake is art, then how long before the Subway sandwich artists are saying that they don’t have to serve a foot-long to a gay person. I see the slippery slope. But, I’m going to surprise a lot of our regular listeners. I think the cake is art. I do. I think —

Cristian Farias: So you really think that a white cake with two little grooms on top, that’s art?

Elie Mystal: I think a wedding cake is an artistic expression. I think that if it wasn’t an artistic expression people would just get their wedding cakes from Carvel, which we know, they do not. I do think that a wedding cake in particular — I wouldn’t say this about the Red Velvet you buy from Junior’s, but I think a wedding cake in particular is an actual form of art. And so, I think that — look, if I was on the court I would tell them to go fuck themselves because I’m all about the gay rights. Like I don’t — I do not live in a world where I am required to be — what’s the word I am looking for?

Cristian Farias: Intellectually —

Joe Patrice: Ideologically consistent.

Elie Mystal: Ideologically consistent.

Joe Patrice: Yeah.

Elie Mystal: I don’t — I don’t require that. So if I was ruling on this I would absolutely find a way to rule in favor of gay rights; however, personally yeah, I think a cake is art. Neither of you are going to come with me on this art?

Joe Patrice: No.

Cristian Farias: No, but where do you draw the line though, like you have florist, you have those people that do those cool PowerPoint presentations or whatever you call it with pictures of the groom and the bride. You have lighting artists at these weddings. So all those guys if they are religious, they are pretty much can say, sorry, I have a First Amendment right to deny you service.

Elie Mystal: Yeah. No. I do — I understand the slippery slope, I understand that – again, if I was ruling on this I would rule in a certain way. I do think that you can draw a line poorest though it may be between service people who are simply arranging things versus an artist who has to create and produce something full cloth.

So the florist is not, man ain’t growing the flowers, right, he is going around, he is picking some flowers, he is throwing them in a vas, that ain’t art, that’s botany.

(00:25:04)

Joe Patrice: That’s not how any of that works.

Elie Mystal: That’s totally how it works in my mind. That’s — the florist is a botanist. A cake maker is literally from nothing, from — well, this is where we get the word from scratch is creating a new thing, and it’s that act of creation that I am willing to put the artistic label on as opposed to mere lighting coordinators and florists, and —

Joe Patrice: Yeah.

Elie Mystal: — DJs.

Cristian Farias: How about a photographer that has to take pictures of two women kissing?

Elie Mystal: Oh no, I think, I think, I think photography is also — yeah, I think that’s pretty much clearly an art. Who wants a homophobic photographer at their wedding?

Cristian Farias: No, that’s true, that’s true, I wouldn’t.

Joe Patrice: But that’s a decision, but this gets to the core of all this, right? Like that’s a decision that the people hiring the folks should be making not the service provider themselves. You can be an artist and suffer for your art and paint, whatever the hell you want and try and peddle it, but, at the point that you open up a service to the world and say the world can come here and hire me for this, once you start discriminating down that road, that is a problem.

Everyone can be as racist as they want in their house, once they open their house as a bed-and-breakfast they don’t get that right anymore, and there’s a reason for that, and that’s where this comes in. I don’t really care if we can define it as something approximating art or whatever when you open yourself up as a for commission I’m going to build this thing for you. You have to abide by society’s rules mercifully.

Elie Mystal: I agree with that, again —

Joe Patrice: This is why I am an Article III shortlist all the time.

Elie Mystal: If I was a judge that’s how I would rule. I’m just saying that on the question presented, is baking a wedding cake art? I am going to say, it’s art, I’m just going to say that I just don’t fucking care that I’m making you use your art in a way that as you I think eloquently put it, comports with society. I don’t care. I don’t care that I’m —

Joe Patrice: You made the choice to open the store, right? Like you don’t have to —

Elie Mystal: You don’t have to be an artist, you could be a preacher.

Joe Patrice: Yeah.

Elie Mystal: And then nobody could make you say nice things about anybody.

Joe Patrice: Yeah.

Elie Mystal: Except for your God.

Joe Patrice: Anyway, but yeah, no, that’s an interesting one.

Elie Mystal: I like Cristian, you were taking such the intellectual middle ground here.

Cristian Farias: I am sorry. Well, I do agree that like this baker for example, apparently his bakery doesn’t — like he has a whole bunch of cakes that he sells to everyone and like he doesn’t deny cookies or pastries to gay people that go into a store, it’s just the act of designing the wedding cake.

So the question is, do you want to sacrifice that part of your business just because you have this one important religious point that you want to make, or this First Amendment point you want to make?

Elie Mystal: I didn’t know about the cookies, wait, this guy — so if I’m gay and I walk in the store and I’m like, can I have some cookies? He is like, yes. I am like, can I have some cakes? He is like, no, go fuck yourself. That’s his dance.

Cristian Farias: Well, no, he will sell you — he will sell you a pre-made cake that he has on the shelf, like in his refrigerator or whatever, but he won’t make you a custom-made cake.

Elie Mystal: Oh right. He can’t just go into his little artisan mode and think I am going to make — so if he doesn’t know who he is making it for he will sell it to you, but if he happens to know you’re gay while he is making it, that’s what ruins it.

Cristian Farias: Yeah, and that’s what’s weird to me, because let’s say that Christians tend to be very moralistic when it comes to — for example, sex out of wedlock or when you kind of have mistress. What if I am a married, but yet I’m about to kind of run away with my mistress and I want to buy a cake before I go have a shotgun wedding. And I tell this guy, hey look, I don’t tell him anything about my background but I tell him, hey look, I’m going to get married to this wonderful woman, would you sell me a cake? I would bet this guy would sell me a cake. But what if I tell him my back story would he sell me the cake? And that’s where — there’s all these interesting hypotheticals that you can pose that truly put this religious claim in really kind of in an awkward situation.

So I wonder if the court is going to be able to grapple with all of those implications and I hope that they do because who knows what kind of Pandora’s box they could open.

Elie Mystal: What if you tell that baker that you’re divorced? Will he do it for you then? Now, look, I think this is fascinating but I think it’s impartial — let me close with this. I think part of the thing that’s fascinating to me right is that — and I don’t mean to offend any of our tepid listeners, but, I mean, bigots, you almost have to laugh at them, right? I mean, like it’s — like the mental hurdles you have to go through to get yourself to the point where as I think you’re putting it very well, Cristian, where you’re kind of okay being bigoted towards gay people, but only in — only for cakes not for cookies, only like just the gymnastics it takes.

(00:30:02)

It’s just — I guess what I’m trying to say to you people, it’s so much simpler just not hating. It’s just so like there just the world just like you free up, like so much time in your day if you just like prosecute your life with the assumption that everybody is a decent person.

Joe Patrice: Well, I don’t know about decent, but —

Elie Mystal: Oh, both of you are decent, well.

Cristian Farias: The baker in his Supreme Court brief, his lawyers make kind of an interesting concession and they said that he is against atheism and that he probably would not make a cake for an atheist that will come into a store requesting I don’t know cake celebrating atheism or agnosticism or whatever.

So again, where do you draw the line, and does anything that you claim as part of your sincerely held religious beliefs trumps your duty to serve the public. So I think it’s an interesting case and who knows what Anthony Kennedy is going to do, he is going to agonize so much over it that some people think he might retire at the end of the term. Who knows, but yeah, I have no idea how the court is going to come down on this.

Joe Patrice: Yeah, once again, I reiterate bakers ruin everything. What is it, cases about bakers make bad law, it’s a phrase like that, anyway.

Thank you so much for joining us, Cristian, and the show is More Perfect, which everyone should be listening to already since Elie is also involved with it, but if not, get on that, there’s a few issue — there’s a few episodes I said “issues”, well, it’s like an issue. There is few episodes out already, the whole seasons sent to your listening device if you subscribe, which you should also be subscribed to this show already, and if you aren’t, you should do that now, and then you should tell everybody about it and then you should give us reviews and just yell at strangers that they should be listening to Thinking Like a Lawyer and all that. You should follow us on Twitter, I am @JosephPatrice, he is @ElieNYC. Should read Above the Law, should check out the other Legal Talk Network podcasts, they’re all over the Legal Talk Network. There is a Legal Talk Network app, you can listen to too.

That I think is every single possible plug I have. Is there anything else you want to say?

Elie Mystal: I can’t think of anymore plugs now. This whole episode has been like one large plug.

Joe Patrice: Yeah, that’s true.

Elie Mystal: It’s true.

Joe Patrice: All right. Thanks everybody for listening. We will talk to you soon.

Elie Mystal: See you guys later.

[Music]

Outro: If you would like more information about what you heard today, please visit  HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com. You can also find us at  HYPERLINK “http://www.abovethelaw.com” abovethelaw.com,  HYPERLINK “http://www.atlredline.com” atlredline.com, iTunes, RSS, Twitter, and Facebook.

The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

[Music]

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Episode Details
Published: October 19, 2017
Podcast: Thinking Like a Lawyer - Above the Law
Podcast
Thinking Like a Lawyer - Above the Law
Thinking Like a Lawyer - Above the Law

Above the Law's Elie Mystal and Joe Patrice examine everyday topics through the prism of a legal framework.

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