OA187: Lowering the Lukumi Bar?
Today's Bonus Episode asks if there's a way to make sense of the Supreme Court's\xa0Lukumi jurisprudence in light of this week's rulings in Trump v. Hawaii (the Travel Ban), Masterpiece Cakeshop, and the somewhat surprising decision to remand the Arlene's Flowers case back to the state of Washington. We begin, however, by checking in with the Southern District of New York's Order approving the Taint Team's review of documents seized from Michael Cohen's offices by the Department of Justice.\xa0 How many documents did the Team recommend the Court withhold as privileged?\xa0 The answer may surprise you! After that, we revisit the thesis advanced by Andrew Seidel in Episode 180 that the Supreme Court's decision in\xa0Masterpiece Cakeshop might result in a more vigorous application of its 1993 decision in Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). Next, we break down the Supreme Court's 5-4 decision in\xa0NIFLA v. Becerra, in which the Court struck down a California law regulating so-called "crisis pregnancy centers." After all that, we end with an all new Thomas Takes The Bar Exam #82 involving the legality of a search for heroin.\xa0 If you'd like to play along, just\xa0retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.\xa0 We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None!\xa0 If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links
- Check out the Southern District of New York's Order\xa0regarding Cohen's meager haul of privileged documents.
- Andrew Seidel set forth his "Lukumi bar" thesis in\xa0Episode 180; you can read\xa0Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)\xa0for yourself and then compare it with both\xa0Trump v. Hawaii\xa0and Masterpiece Cakeshop.
- We discussed\xa0Planned Parenthood v. Casey\xa0at length in a two-part series:\xa0\xa0Episode 27 and Episode 28; you might want to compare the statute approved in that case with the one struck down by the Court in\xa0NIFLA v. Becerra.