Full Transcript for You've Been Served...a Letter

They they they were emulating their students there in in terms of handling emotions and handling feelings. And unfortunately for them, you can't do that. There was actually a a case from the US Supreme Court from just you know a few years ago saying that when you're talking about an officially run social media page, run by the government, that that is a First Amendment space. And to block somebody, especially a constituent who's directly affected by policies enacted by those folks, that that is a violation of the First Amendment To block them. And so we wound up getting some documents from a public records request, another important tool outside of the courtroom, as showing what had happened, and we sent them a letter saying, hey, we found out this happened, that's a violation, and you can't do that. And to your ex point about just getting something done, you know, once the lawyers on their side got involved, they almost immediately got back to us and said, Sorry, sorry, you know, we didn't we didn't know anything about that, and turns out they're going to be Fixing that policy and issuing a strongly worded apology letter to our client, Ms. Palmer. So very successful. didn't take a years-long litigation process to do that either. Another good example is from the Chicago area from District 128. We found out that there's a school district in there in the 128 that is has a bunch of weird, kind of weird gender policies. So they're not only making it a secret when a child decides that they're going to transition genders so to speak at school, they won't tell the parents about that. But they're also giving that child overnight accommodations with the opposite sex. So if you're a male who identifies, I guess, psychologically as a female, you'll be bunking with the female students on overnight trips. So Yeah, yeah Ryan: Okay, okay. 'Cause I was thinking they're setting people up in apartments or something, but you mean you you're talking about over you're talking about overnight field trips is what you're talking about. All right, well at least they haven't gotten that crazy. But anyway, go ahead go go go ahead and not yet. Anyway, yeah. Tim Snowball: No, no, yeah, they I guess if they o overnight field trips or if they go, I guess No, no, no, not y not yet, right? And and so this this this raises all kinds of national issues as you alluded to. There's been several cases decided even the last year, one of them at the US Supreme Court on the shadow docket that we talked about last time, the emergency docket. That has explicitly said parents are the ones who who are, you know, in charge of their children, when it comes to psychological issues like gender dysphoria. And so these policies that are set up to cut parents out not only violates the parents' parental rights under the Fourteenth Amendment, which goes to the very heart of the relationship between parents and children, but also free exercise rights under the First Amendment, free religion rights. And so if you're a parent who believes that God created Men and women as distinct sexes, and your children being taught something different, or your children are being allowed to embrace an opposite gender without your knowledge, that's a violation of your constitutional rights. And so, well, we sent the letter there to the district out there, and you know, we got the opposite result. They told us to kind of go kick rocks. And Ryan: Mm. Tim Snowball: so if that's if that's their position as to the constitutionality of what they're doing, the next step in that process, again, we've gotten some media attention through that letter. and we're going be looking potentially for clients to to develop a lawsuit. Ryan: Well, you talked about the the the the Chicago school system and writing about the the the transitioning for the students and stuff. So transitioning, no pun intended, from that crucial work we just talked about with our with our letters short of a lawsuit. We're gonna continue that discussion about parental rights by talking about a critical parental rights case coming up at the Supreme Court this year. In International Partners for Ethical Care versus Ferguson, the court is going to decide whether parents have the right to challenge a Washington state law that requires government officials to hide runaway youths from their parents if the kids are running away to get sex change operations And it requires the government officials to help the kids obtain the sex change operations or other care. so Tim, you wrote an amicus brief supporting the parents. Tell us more about the case, which if the parents lose on this, I think it is no understatement that it will upend everything we know about parental rights law right now. Tim Snowball: Yeah, happy to do it. So just just for the anyone in the audience who may not know what amicus means, so amicus curi is Latin for friend of the court, and so whenever you hear a reference to an amicus brief, that's an opportunity for attorneys like us who have a particular expertise or interest in an issue to basically participate in a case that we didn't file. So we're not direct representatives of anyone in the Ferguson case. However, given our expertise, our parents' initiative, we had an opportunity to lend our two cents as to the issues. So as as Ryan explained, in the Ferguson case you have this so so if it wasn't bad enough that states and municipalities or are and school districts are supporting the idea that children can so called transition genders without their parents even knowing, now it's the next step where if a child runs away to go get some kind of medical care that the parents disagree with, sometimes permanent, sometimes these surgeries or these hormone treatments can wind up having lasting effects that go on for decades, perhaps Ryan: Yeah. Tim Snowball: Permanently. Ryan: This Tim Snowball: you know, ki kids wind up being you know sterilized and different things because of these taking

cross-sex hormones. But if kids go run away now in Washington State, they enacted a statute to basically for the state to support them, for the state to support them and their efforts and to cut the parents out. And you know, I I think for this statute and for the policies we've been discussing in terms of secret gender transitions and cutting parents out of the school process. What it really boils down to is a almost a presumption of guilt on for the parents or a presumption of hostility. So the idea is because some parents might take issue with these transitions and might not agree with them, therefore all parents are are going to be completely cut out of the process. And and the words they use in these statutes and regulations, words like abuse or harm, you know, we're not talking about actual abuse. Abuse as defined by state statutes or regulations like locking in a kid in a closet or physical abuse. think think of nightmare stuff, actual abuse where CPS Ryan: Yeah. Tim Snowball: needs to come in and get involved. We're talking about maybe a parent might say, I'm sorry, honey, I I don't, you know, believe in gender dysphoria, or I think that you know, maybe you have something else going on, and I'm gonna seek help through the church, or I'm gonna seek help through a counselor for your condition. Anything less than going and buying your son a address and and calling him by a different name is considered to be abuse. And so that's really the justification here and I think it it's it's twisted to say the least. And and and and so so ultimately there's going to be, you know, large groups of parents who actually agree with this transgender stuff if you had a policy as the constitution requires where parents are going to be informed of this stuff, it actually is is what I would consider to be a pro choice approach, right? Because you're letting parents know about what's going on with their kid and letting them make the decision according to their own morals, their own family values, about the best way to approach their child's mental condition. And imagine that little Johnny was experiencing any other kind of mental distress if we're talking about a depression or an anxiety or anything else that a teacher could observe, you know, there's no question in my mind that the administration there at the school would inform parents about something that's affecting their child's mental well being. But if it's gender dysphoria, suddenly the standard has changed and not only are we gonna fully support, you know, little Johnny's transition, we're not gonna tell their parents about it. And it really undermines, you know, again, not only the parental ability to to be in control of their their child's well being and their medical care, say nothing less of that, but also again this free exercise issue of religious faith and and the Ryan: Yeah. And Tim, you you're much closer to this than me. I think what the school or the government would say is, well, these these

kids they they've got to act now because i if we wait on the puberty blockers, then they become a a full you know, you Pinocchio, a real boy or a real girl, you know, and then it's too late So we have to jump in now. When they're in the most v when we've heard for years from the court, children are most vulnerable and and so they But but it it's it's it turns it upside down. If these people are most impressionable, most vulnerable at these early ages, it's when they need their parents the most, not some government official who's not gonna love as much as their mom and dad does. Tim Snowball: abs absolutely and imagine and again imagine any other mental condition in which the you know first alternative for care was some kind of, you know, surgery, right? Like if somebody has an eating disorder or something, the first thing we're going to do is like put a tube down their throat or something, or like if someone has anxiety, just anything else, and I mean 'cause these kids are experiencing a mental condition and the state is saying the best way for us to deal with that is to start injecting me with hormones. And it's Ryan: Yeah. Tim Snowball: so as you as you mentioned, it's really a really a a twisted thing. And again, it is up to parents, you know, in consultation with their own faith, their own conscience and their own understanding of the best medical care for their kids, to make these decisions and and states like Washington are inserting themselves in between that relationship and so it's it's not only unconstitutional, as we explain in our brief, but I would consider to be highly immoral. Ryan: Okay, so let's just focus in here real quick on what's at stake at the Supreme Court. What what what is the result if the parents win? What is the result if the parents lose? Tim Snowball: Well this case got kicked, a on a procedural issue, I think as you may have mentioned earlier, so the the the add yes, sta standing. So so so in order to get to in order Ryan: Yes, standing. Do the parents even have the right to ch challenge this law that the government has imposed on them? Tim Snowball: in order to get a case in federal court, you have to be able to show that you were injured. All right, it's the most basic and this injury doesn't have to be monetary, it doesn't have to be you breaking your leg, it can be your rights being infringed. And so this case got kicked out of court below because the argument the government made was, well, if if your kid actually hasn't run away and hasn't went to go, have surgery done, then you have no standing because nothing's happened. You haven't been injured. And the parents are maintaining, and as we support them in our brief, simply being having this law applied to you is is a is a sufficient injury because at any point in which this happens in the future, immediately you're gonna have your rights undermined. So simply the the application of an unconstitutional statute is a sufficient injury for purposes of standing under Article three. That's the argument. Ryan: Yeah, and yeah, and preemptive ch there's nothing new about preemptive challenges on on laws like this. Tim Snowball: Right. Right. No. But it's it's a hot button issue, it's it's in the news, this has been a an ongoing thing for the past ten years or so, and so everyone, you know, on both sides is very fired up and has has high emotions over these transgender issues and so I think that lent itself toward the case being dismissed below and and now we're we're up on Capitol Hill and we'll see what the Supremes think. Ryan: Well, it just as immediate as the the pro government people in this particular case is, well, the the child has to have this treatment ASAP because if we wait too long, then they're too grown up for it to have any effect. Well, from the parents' perspective, we gotta stop the law now because as soon as child runs away, has the surgery, has the treatment, it's too late to fix it. It's too late to get my rights vindicated once that happens. So the idea that they cannot have standing that this this is not and I would say the injury is there because the state is taking the parental role away from the parent and that is current and happening now whether or not their child is run out the door or jumped out a snuck out the window. Tim Snowball: That's correct. Ryan: So we this is this is the things to come. do do we know the argument date for this yet? Tim Snowball: No, no, I think everything's still still pending in this case, but certainly we'll give an update to the audience once we have some more concrete Ryan: Sure, Tim Snowball: information. Ryan: Back in the year 2000, Congress passed a religious land use law that prevented governments from having land use regulations that placed a substantial burden on the religious exercise of a person or churches unless the government could pass strict scrutiny, which is to demonstrate a compelling interest in the law, and the law was the least restrictive means to further that interest. This law was basically created to prevent the government on any level, not just federal, but from any level, from becoming A religion-hating homeowners association. But just like the HOA president in your neighborhood that measures the height of your mailbox and the width of the trunk of the new tree in your front yard, some people just can't help themselves, can't mind their own business, and must tell people how to use their private property. Brendan, please. Tell us about the no the nosy neighbors in northern Kentucky that are hassling a Catholic church that wants to build a monument to Mary on their own land, the people in Ohio that do not want a Jewish man inviting ten men over to his house to pray on the Sabbath, and what you think the Supreme Court is gonna do about it. Brendan Philbin: Alright, thanks Ryan. so as you mentioned, this these cases are the Religious Land Use and Institutionalized Person Act, the R U R L U I P A. as you know, I'm an elite

acronym user, haven't spent eighteen years in the military, but I can't make that I can't make that into a cool acronym. So I think for this segment we'll just call it the Act. All right. Ryan: Yeah, that's fine. and make sure you you explain what the institutionalize is to make sure people know it's not the nut house. Brendan Philbin: Yeah, all right. Tim Snowball: I w just for the record, I've I've heard it referred to as R Lupa. Brendan Philbin: Alright. well this is GUPA or the Act. so the Supreme Court this term has two cases that deal with this act and it's gonna answer two very important questions. And one builds on what we were just talking about in that parental rights case, and i if someone wants if someone wants to use this act to sue the government, what do they have to do to get into federal court? So that's a standing question and that's the grand case. And then the other question about the act that the Supreme Court is going to answer is what must the religious person or entity prove once he has standing to get into court? And that's what the Kentucky case of Frederick talks about. so I think before we dive in to the cases, it's worth a primer on what this act is. And like most great stories, it starts with two dudes smoking peyote. yeah, yes. Yeah. Ryan: Of course. Just like Cheechin Chong. It begins there. Yeah, go ahead. Brendan Philbin: So b back in nineteen ninety, two Native Americans smoked peyote as part of their religious tradition. They also happened to work at a a drug treatment center. So they were fired for that and they sued under Ryan: You don't say. Brendan Philbin: they tried to get unemployment benefits and the the unemployment office said no you may not have any money because you were sued for smoking peyote at the at the drug center so through misconduct at your at your job so these these two individuals sued under the First Amendment and the Supreme Court in the case of employment division versus Smith said that it was Okay, for them to have been denied unemployment benefits. And the Supreme Court shifted the burden from strict scrutiny of religious analysis down to just rational basis. Is it neutrally applied? Is this criminal law neutrally applied to all to all parties? So that Ryan: Yeah, 'cause 'cause those guys were saying they got to they got to smoke the peoty because it was part of their their religions, part of their faith, right? Brendan Philbin: Yeah, yeah, yeah. Tim Snowball: Yeah. And and and I'll and I'll and I'll note that you know, even fans of Scalia, this was an opinion written by Scalia and it's considered even, you know, he's a prolific writer, prolific thinker, obviously, a giant on the court, that this is one of his most criticized opinions, along with perhaps Brendan Philbin: Right. Tim Snowball: the Chevron case from the early eighties. Because even in in it's even pointed out, I've read, you know, commentary on it, that, you know, Scalia as a Catholic should understand the the importance of sacraments and and sacramental rites And for these folks who were out there in the woods, even though this might appear strange to you and I, this experience they were having on Peyote was akin to a sacrament or a religious experience. And so that there was even some allegations of hypocrisy against Ghiah, but yeah. Brendan Philbin: So and Congress also disagreed with Scalia, but Congress does so often, they came off the top rope, right? And so they passed this law back in nineteen ninety-three, the Religious Freedom Restoration Act. And it it basically said there has to be a compelling interest review, a medi I'd say a medium to medium high standard of review if the government takes any action against religion at all. So it was like super, super broad. Ryan: Yeah, and it and it was really crazy. It was kinda like the people that only show up to church on Christmas and Easter. You had Chuck Schumer in the House, Ted Kennedy in the Senate, and then Bill Clinton signing the thing. I mean, it was really crazy. Brendan Philbin: Yeah. Tim Snowball: Well. Brendan Philbin: Yep. Yeah, so that was struck down in a case City of Bourne vs. Flores in nineteen ninety seven. Ryan: Yeah, that law was declared unconstitutional, yeah. Brendan Philbin: Yeah, yeah, yeah. Supreme Court said, Whoa, way wa wa way too broad. So Congress still disagreed with the employment division case though, so they passed the act that we're talking about today, LUPA. and so how they how they did it is they they really narrowed the scope of what government actions were covered by this c compelling interest review and its zoning issues, land use issues And the institutionalized persons part of it. The IPA, not the beer, the IPA part of the of the act is the Institutionalized Persons Act. So yes, yes. Ryan: And these are people in jail, right? Prisons. Okay. Brendan Philbin: Yep. Yep. not people who, you know, work at schools or other institutions. so this law is on the books and and it it's it's been going since 2000. So the the the the crux of it is that no government can impose or implement a land use regulation that substantially burdens religion unless it shows that doing so, burdening religion in this way is the least restrictive means of furthering a compelling interest. so that's that that's a that's a decent s in our world, that's like a decent standard of review that we could often prevail on. Tim Snowball: Why why land use? it's never really I've never really thought about it. Well, do we think that there's a particular re I they were trying to narrow it, but is it Brendan Philbin: So I I I think maybe I don't know, but this is an educated guess, is that case City of Born v. Flores that overturned the super broad religious freedom and restoration act, that was a zoning case. So I I think the I think Congress s was scolded by the Supreme Court and they said, you know what, we could take direct action against what the Supreme Court just said here. that Bourne

case it similar to what we're gonna talk about in in Kentucky, the the Catholic Church wanted to expand its its church But it was denied because it was a of a historic preservation ordinance. so as a result, the the act, the R L U IPA Act that we're talking about, was was passed. So that's been on the books for for a while. another thing to note is that it is f a friendly definition for religious exercise. It is a broad definition, it's any exercise of religion, whether or not compelled by or central to a system of religious belief. So you don't have to be a orthodox Jew or you don't have to be really like a pious Catholic, and you would still be covered under your under your religious exercise. And the use building or conversion of real property for religious purposes is religious exercise. So if you want to build a grotto, which we'll talk about in a second, that is religious exercise under this, under this act. And obviously if you want to have a minion which is a Jewish prayer group of ten or more men in the Orthodox Jewish tradition, that is also obviously exercise of religion. So we're gonna talk yeah. Tim Snowball: Well let me and let me ask let me let me ask you this. So I know the courts over time, especially with free exercise and establishment clause cases, they're reluctant to delve too deeply into the genuineness of someone's faith. so is there is there like a minimal threshold here for what constitutes religious land use? Or can I start like the church of, you know, Tim Snowball or whatever in my front yard and and like the what's the what's the line here? Ryan: Can I be a deacon? Tim Snowball: Y well w Brendan Philbin: Sure. Tim Snowball: I'm happy to have you apply. It's Ryan: okay. Go through the the con the conversion ceremony first, make sure I'm committed. Got it. I understand. Well you yeah, Tim Snowball: very no, it's very very very ri very rigor very rigorous. Ryan: due diligence there on your church. I understand. Brendan Philbin: I so I I actually don't know how far the courts will go into it. Like if if you if us three wanted to start a beyond a reasonable docket faith, and these podcasts are our weekly gospels or monthly gospels, then I I don't know. Like I I I don't know I don't quite know the definition. fortunately Roman Catholicism and Orthodox Judaism have been around for thousands of years. so yeah, Ryan: You don't say. Brendan Philbin: so so in this particular instance, we don't have to we don't have to wrestle with that. But I do imagine there has to be at least some straight faced straight faced argument or people would be availing themselves to this law all the time. Ryan: Yeah, th they might they might say some aliens came to Earth and had a war and crashed into volcanoes and now live in your bodies or something like that. Brendan Philbin: Yeah. But look, the the counterpoint is I have been to a lot of weddings that my friends who are not pious by any means were somehow able to officiate because they went on

the internet, they got a certificate of the Church of the World Tim Snowball: Ha ha ha. Brendan Philbin: Wide Web and they officiated these these weddings under that's state law, right? So I don't it's it's a good question. Ryan: Sure, in that in that I mean I I'm no I'm no I'm no friends super fan or anything, but didn't didn't Joey Tribiani marry Ross and Rachel after he got one of those ordinations? Brendan Philbin: I yeah, I I think so. I I've I have six or seven friends that that have Ryan: Yeah, that's how too, yeah. Tim Snowball: I was watching Se I was watching Seinfeld, so I wouldn't I wouldn't know during that period. Come on. You c Ryan: Got it. Mm-hmm. I got you. Tim Snowball: you like friends? I man. Brendan Philbin: Look, we're the the hardest part Ryan: No, it's just on all the time on T N T, that's all. I had to flip over Brendan Philbin: So Ryan: to Comedy Central to catch my son. Anyway. Brendan Philbin: You guys are giving me a good idea, 'cause I think the hardest part of our business is finding a client. There's there's plenty of government overreach out there, but finding a client and the vehicle to take it. So perhaps we could just start forming different faiths, among the Tim Snowball: Starting our own church. Brendan Philbin: among the staff attorneys here or something. Yeah. Yeah. Take take a take a lot of ad administrative burden off of the off of the attorneys. But anyway, back to back to the act. And first is what do need to do to get into court under the under the act. And that is this case Grand vs City of University Heights. So University of Heights is in Ohio and Mr. Daniel Grant, he's an Orthodox Jew and part of that faith is y y you can't avail yourself to modern conveyances on the Sabbath. So he lived far away from a a synagogue or a place of worship, but Orthodox Judaism allows for a substitute for going to synagogue, and that is praying in a minion, which is a group of ten men. can come over to his house, they could all walk over, and pray and they can meet their religious requirements on the Sabbath. Well, you know, I I've I've been over at buddies' houses and there was ten of us and we we played poker. you know, now that I'm getting older, you know, Ryan: Watch the game, you know. Brendan Philbin: my I I remember my parents, they used to go to Tupperware parties, right? Way back way back in the day before Amazon was was ubiquitous. But they didn't need a permit for a casino or for a a retail store to do that. But for for whatever reason, read between the lines maybe. The the the sound neighbors in University Heights said, this isn't this isn't right. You need to get a zoning permit for a house of worship. So Tim Snowball: To have a to have a prayer meeting. Brendan Philbin: yes. Yep. Yep. Ryan: Of of ten guys. Brendan Philbin: Yes, ten guys over your house to pray, that is you are a house of worship and you need to get you need to get a permit. So Tim Snowball: I don't understand Ryan: Now I've been part of

Bible studies Tim Snowball: why they would Ryan: that was twenty guys over to a guy's house to for instance. Tim Snowball: But I don't understand what what wh why would they why would I mean unless it's just out and out hostility Brendan Philbin: it yes, it so Ryan: Could be Brendan Philbin: it could be and you're you're about to be right and what this that this is w one of the main reasons why this case is up on standing. So Mr. Grant availed himself to the zoning process and he applied for the permit and he went to the the administrative board hearing and he very quickly realized that it was a futile effort. For Ryan: Yeah, they kinda changed the rules on him real quick at the last minute, didn't they? Brendan Philbin: Yeah, they did. So so two two two points worth making about the hearing. One is they said, Hey, if you want this permit, you can't live there because you want a house you want a house of worship, can't be a residence. So he would have to in effect move out of his house, if he wanted the church. And secondly, as if any of you have ever gone through a zoning process, there are neighbor comments. And the the neighbor comments are on on their face anti Semitic in a lot of instances or kind of veiled. they one of the neighbors said they don't want their neighborhood turning into a Jewish neighborhood and that. So h he very quickly realized that he was i the deck was stacked against him so he abandoned his zoning appeal. he said he said, What the heck with this? I'm out. But under the under the act, there there's this idea of finality. You have to exhaust all of your administrative remedies before you file suit. So he he filed suit under h under a First Amendment suit without finishing that zoning process. Ryan: getting officially told no or have the official result, even though it was Brendan Philbin: Yep. Ryan: a meat grinder anyway. Brendan Philbin: Right, right. So there they're under a ta under the takings ideal there there is a finality clause, like you have to go through everything, all the state administrative remedies before you can sue and the Sixth Circuit applied that finality rule, land use finality rule, to this zoning case. So that is that is the question. Tim Snowball: So but just to just to clarify, did did did he did he so he when he brought suit, did he was he availing himself of the cause of action under Araupa? Or or was he did he bring just a you know, like a free exercise claim under section nineteen eighty three? Brendan Philbin: No, he yeah, no, he he sued under under the act, under our our Lupa. Yeah, yeah. Tim Snowball: okay. And the act prescribes this administrative exhaustion that he did not follow. Brendan Philbin: Right, yeah. There's this land use finality rule. under under the under a different sorry, the act does not, but under just general land use, if you want to sue under takings for Tim Snowball: Yes. Brendan Philbin: land use, i if the government says, Hey, you can't I'm gonna literally take your

land or you can't use it in a certain way and you wanna sue because that's a taking without just compensation y there there's a rule that you have to exhaust. So the Sixth Circuit borrowed that rule and applied it to R Loopah. Tim Snowball: Listen. Brendan Philbin: So so is the question here is if you if do are R Loopah plaintiffs required to go through the entire zoning process, or can once they realize that it's it's a waste of time, can they just sue right away? and I I think it's an important question overall, but if you think about it, these a lot of the these religious institutions, they're not they don't have a ton of money, right? Th they don't have big budgets to litigate and zoning a a lot of time you're just bleeding people dry because the the case is good the zoning goes on the zoning board goes on forever and then you have to appeal it up to state court and it just it just takes forever. So I think it's an important issue f especially for religious institutions, like can can they just fast forward and get to the issue? Because everyone knows why Tim Snowball: And I and I know in in in general in general civil rights cases, you know, under the statute I mentioned, section nineteen eighty three, the courts have been very strict in coming back and saying, We're talking about civil rights violations and you cannot apply an administrative exhaustion requirement to a federal statute, like section like Congress has decided to give people a cause of action under this, and local jurisdictions can't step in and burden that right. There actually was a taking case even a few years ago, I think, in in hennepin. County in Pennsylvania that that explicitly said this. So Brendan Philbin: Right. Tim Snowball: yeah, no this seems to be the same issue rule. Brendan Philbin: Yeah. so that that's how you that that's the issue of how that some of these plaintiffs get into state court and or excuse me, get into federal court under under the act. And then the second aspect is what do they have to prove when they get there? So we have the missionaries of St. John the Baptist, v. Frederick. And and Ryan, is this around you this case? Ryan: No, this is in northern Kentucky. This is the suburbs of Cincinnati. And Brendan Philbin: Okay. Ryan: and so and just just as just a point of information, the Cincinnati airport is not in Ohio. It's in northern Kentucky, just so you know. Okay. So Tim Snowball: Yeah. Brendan Philbin: Interesting. Okay. Ryan: you fly into the northern Kentucky airport. And I and I and I only stick up for my state here. I mean my my state, you know, depending on what part of it you're in, it's a totally different culture and that kind of deal. but I think a lot of people live on the Kentucky side of the river for a good reason as opposed to and commute into town, as opposed to Brendan Philbin: Right. Ryan: staying up there in that godforsaken state that just likes to spell itself all the time. The people up there just Brendan Philbin: Ha ha ha. Ryan: they love to spell the name of their state. But anyway. Brendan Philbin: Right. Alright. So i if you remember, the our Lupa, the government may not impose regulation that substantially burdens religious exercise. So what is substantial burden? And the missionaries of St. John the Baptist believe that they were substantially burdened and they actually went through the zoning process and won. great. So they don't have the issues that Mr. Grant has. They exhausted their administrative remedies. But NIMBY NIMBY neighbors are still around and they they got involved. So the Frederick is the is the neighbor of this church. So this church wants to build a grotto, sixteen by thirty-nine foot grotto, which I've seen in the coverage is like a swimming pool size. Ryan: Like in a cave, like a like a artificial cave, like a a pool, and Brendan Philbin: Yeah, yeah. Ryan: have like a statue of the Virgin Mary in there or something. Brendan Philbin: Right. Yep. And they want to build it on an adjacent lot to their church, our Lady of Lord's church. Ryan: And they own the lot. They it's their property. Yeah. Mm-hmm. Brendan Philbin: They do. Yep. Yeah, which and that church has been around since nineteen thirty. the Board the Board of Adjustment approved it four to one. and but the Kentucky Supreme Court, the Court of Appeals had reversed it, and then the Kentucky Supreme Court affirmed and said that building the grotto is a religious exercise, right? Remember we talked about the definition under the act is super is super broad, but the Kentucky Supreme Court said that there's no substantial burden on the church for two distinct reasons. One, they could build a smaller one. Just build a smaller grotto. that's fine. And two, which I I think this is absurd and I think it's dangerous, the the church knew the ordinance Barred the project so the burden was self imposed. So the church knew about this ordinance that it had to that that it could not be on a non arterial street in the neighborhood. It's like very deep zone yeah. Yeah, yeah, that yeah. Ryan: they had to they had to ask for an exception. And because and because they had to ask ask for an exception, they should have known the law was against what they were doing. Even though the law itself allows for exceptions. Tim Snowball: And what does that mean then Wha what Brendan Philbin: Right. Yeah, and even though the zoning board gave them the exception too. even crazier, right? Ryan: Yeah, so th this no, this is not my state Supreme Court's finest hour, but that list is long. Go ahead. Brendan Philbin: Right, right. Tim Snowball: Well I was gonna ask, what is what is you you mentioned like a term of art non arterial. So what was the actual prohibition? What were they prohibited from doing for which they had to seek the exception? Brendan Philbin: Sure, so churches are conditional uses in residential zones only if they are on an arterial street, which you know, a a main yeah. Yeah, so Ryan: Yeah, this

church got grandfathered in. This law came after the church's existence, so it got grandfathered in. Brendan Philbin: basically like a main thoroughfare, not a side street. and so they were on they were trying to build this on a side street. yeah, so it yeah, they Tim Snowball: near a residential area. Brendan Philbin: Right, right. and the Ort Ryan: Mm-hmm. In a residential area, not even near, I think. It's I I think it's in it. Brendan Philbin: Yeah, and and and the cert petition noted that the church is subject to that arterial road requirement, but cemeteries, the church's own schools, parks, and country clubs are not. So y you could plop a big ol' country club down some side street in a neighborhood and it would be fine. But if you want to build a sixteen foot by thirty nine foot grotto on your own land that's already a church, Tim Snowball: Well and Brendan Philbin: Land then, you can't. Yeah. Tim Snowball: a and all Ryan: Yeah, this this this smells of HOA nonsense, but the it sounds like they could have threw in a free exercise claim here as well. But anyway, Tim, you were gonna say something. Tim Snowball: Well, I was I'll I'll mention that that that this exercise for for Catholics of building grottoes with the Virgin Mary, this isn't something that's kind of arbitrary either. It's tied to a very specific religious belief in the Catholic Church going back centuries, and actually many Catholic churches that you'll visit actually have these grottoes. It's tied to a very specific faith claim, faith belief. In yeah, our Ryan: An event that happened in Italy in the eighteen hundreds or something like that. Tim Snowball: our it's our our Lady of our Lady of Lords. So Brendan Philbin: Yeah. Tim Snowball: so it this is not something just For listeners, this is not something that this church has pulled out of their hat. This is something that's actually a widespread practice in the Catholic Church. Brendan Philbin: Yep. So a and that's why we're not discussing the act's broad religious exercise definition, 'cause this is Tim, this is squarely within the Catholic catechism here. so yeah, those are the two issues. What what is how do you get in as a as an as a plaintiff under our Lupa and w what do you have to prove? What's a what's a substantial burden? And the the substantial burden bit is all the the circuit courts are all over the place. there's been a total of sixteen factors across all the circuits that are considered. and they're all di Yeah, they're all they're Ryan: A law professor's dream there on that exam, yes, yeah. Brendan Philbin: all different. you know, and in our in our world, if you have this case, it's like, you know, there's there's like a one percent chance I can get to the Supreme Court. But man, not just one circuit split, but a s a circuit circuit sp shatter, right? It's in it's in six eleven different pieces. so yeah those are those are the issues. I there there's no argument date yet for the grotto case but it should be

mid January twenty twenty seven and the The grand case is dec I think w should be around that should be around that same time. So the briefing and all these cases are going on right now. but it's yeah, it's an interesting interesting look into the into the the act and and what it means for religions, big and small. Ryan: Brendan, I mean, yeah. You got any tea leaves for this? I mean, there are a lot of Catholics on the Supreme Court, but that doesn't necessarily mean they're gonna rule in favor of the church. You got any predictions? Brendan Philbin: I I I do think that Mr Grand will be successful. i just just because the the exhaustion of administrative remedies it it was borrowed from another area of law. It was borrowed from takings. So i I I think there's a there's a str right. Ryan: It's not in the statute itself. I think Tim mentioned that before. Yeah, okay. Brendan Philbin: Yeah, right, right. So I I think that would be that would be strong. that that's a strong case. And I Ryan: Yeah, I agree. Yeah. Brendan Philbin: I it's just a matter of what what what sixteen factors the the courts are gonna the courts are gonna Ryan: Ha ha ha. Brendan Philbin: use. yeah, so we'll we'll see. Ryan: I don't think the Chief Justice is a big fan of a lot of factors. Who was it that famously on the court? He recently left. Was it was it Briar or Suter that loved like multi-factor tests or something like that? Do you guys remember? Is Tim Snowball: Yeah, prior. Ryan: Briar? Yeah. Well, he's not there anymore, so hopefully Tim Snowball: Yeah. Ryan: they'll they'll simplify matters. And so just like with Tim Snowball: Well you would hop you would hope you would hope that the former case where where it's not even in the statute would just be a textual basis to say this is not in the statute like just just read it, it's not there, right? Ryan: Mm-hmm. Yeah, so hopefully hopefully it'll work out simply there. And and you know, for as complicated as things are in the legal world, I really do think the Supreme Court, you know, and and Chief Justice Roberts said this when he was appointed, they wanna make things a lot as simple as possible and make their decisions as understandable as to the average person as much as possible. So hopefully that'll come out this way too because churches don't want to have to pay a bunch of lawyers they want to be able to read this be able to understand what they can and can't do and people of faith as well Brendan Philbin: Yeah. yeah, I I and I I think for the just for the for the Kentucky case it it could be really dangerous 'cause if you think about that self imposed thing where the the church already knew about it, so they lose. I mean, hey, city governments can just start enacting these laws and say, well it's already on the books, you already knew about it, sorry, you you can't avail yourself to our Goupa anymore. Ryan: Yeah, I hear what you saying. Brendan Philbin: So I think that's that's pretty dangerous. Ryan: Yeah. All right. Well we'll leave it there for now and we'll definitely keep you guys in our listening audience up to date on what happens. They are Brendan Philbin and Tim Snowball. I'm Ryan Morrison. We're all with the Liberty Justice Center. Thank you for being with us today. Please subscribe to Beyond the Reasonable Docket Podcast and tell your friends to subscribe as well. We appreciate your five-star ratings and your kind reviews. They help other people find the podcast. Please follow the Liberty Justice Center on all social media platforms. We're on them all. And visit our home on the web, Liberty JusticeCenter.org, where you can sign up for the Beyond the Reasonable Docket Substack and get some good things to read in your inbox and your email. We hope you had a great time with us today. And please join us again for the next Beyond a Reasonable Docket.