Supreme Court Makes Important Ruling, Case Law Settled?!?

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2:30Michael Popok:We got some good news coming out of the United States Supreme Court. They have rejected the attempt to overturn same-sex marriage being led by the MAGA right-wing conservatives with their stalking horse of Kim Davis, a Kentucky clerk who refused to issue same-sex marriage licenses on religious grounds 10 years ago. She wanted out from under her$300 ,000 fine. She wanted out from under a judgment against her in that case that she's a bigot, which she was, and they were trying to topple a 10-year constitutional right that's been established in a case called Obergefell back 10 years ago. But in order to do that, you've got to have at least four votes on the United States Supreme Court to take up an appeal and five to rule in your favor.

3:18Michael Popok:They can't count to four because there doesn't seem to be four votes. Not only did the court in its order list today reject it without commentary, there was no dissent or statement made by anybody else. Usually if a Supreme Court justice is upset or thinks they have the votes or they can lobby to get one more vote, like five votes, you'll see them issue a statement. Zero statement. Which is not surprising when I go through even the MAGA right right wing has said they're not going to overturn same-sex marriage, primarily not because it's based on substantive due process, which is the foundation for this particular right, but because of the reliance interests of almost 850 ,000 couples and 300 ,000 children that are in same-sex marriage relationships.

4:08Michael Popok:And they're not going to rip out from under them, they're not going to pull the rug out from under them, the constitutional rug now. So here's the headline, at least at this conference, on this order list, they don't have the four votes. And I don't see that changing next week when it will probably be considered maybe one more time and then finally rejected. I think this is the nail in the coffin for this particular attempt to take away this particular constitutional right, despite the fact that Clarence Thomas has been lobbying his fellow brethren for the last 10 years to try to get four votes and five votes to overturn it and called for it in the Obrich of Felk case.

4:48Michael Popok:I'm working on now to brief our audience. I'm working on getting Robbie Kaplan, lawyer extraordinaire out of New York. You might know her from the E. Jean Carroll case. She was also very instrumental in laying the foundation for the Obrich of Felk case in her Defense of Marriage Act case that went before it at the United States Supreme Court. Can't think of anybody better than Robbie to brief our audience on Legal AF on the Midas Touch Network. While you're here, hit the free subscribe button, slide over to Legal AF YouTube, and let's do the exact same thing as we continue to grow that pro-democracy channel.

5:22Michael Popok:How do we get here? Let's roll back the tape. Kim Davis, disgusting in every way. What was a Kentucky clerk? She lost her bid to get reelected in 2018. She refused on religious grounds to issue marriage licenses to same-sex couples in Kentucky. Shout out to same-sex couples in Kentucky at the time. And now it's not an easy place, I think, to pull that off. And yet, rather than go work in a church, which is what she should do, she said even though she's a municipal government employee, she's not going to issue same-sex marriage licenses to people because she doesn't believe in it. I guess if they went in for a dog license, she wouldn't issue that either.

6:02Michael Popok:And if they went in to pay their taxes, she wouldn't accept it because they're same sex. So that case was always a loser for her, as well as her being a loser. Kim Davis loses in her case because it is a constitutional right to same sex marriage. And no, she doesn't get to impose and shove down our throats her religious beliefs when she's working in a governmental position. And so she got fined$300 ,000. Fast forward, believing after the Dobbs decision in 2022, which ripped away a woman's right to choose under the Roe versus Wade that had been established 50 years earlier, MAGA got all excited and thought maybe we can do the same thing to same-sex marriage.

6:47Michael Popok:They were encouraged, literally, by Clarence Thomas, who in the Obergefell decision, sorry, in the Dobbs decision on taking away abortion rights, reproductive rights from women, right, to choose, he actually wrote calling for the reconsideration of the foundation underneath same-sex marriage, which is what we call substantive due process. Here's what he said in particular two years ago in the Dobbs decision. He said, the court today declines to disturb substantive due process jurisprudence generally or the doctrines application in other specific contexts. Then he listed Griswold versus Connecticut, which is the right to married couples to have contraception from 1965.

7:36Michael Popok:Lawrence versus Texas, the right to consensual sexual acts between in private. Obergefell versus Hodges, he lists as right to same-sex marriage. He says they're not at issue in this case yet. He's been lobbying now for two years. Problem is he doesn't have the votes. I'll tell you why he doesn't have the votes. because we picked up some things in the last couple of years of reporting. And it mainly comes down to this concept in jurisprudence called reliance interests. And it's what it sounds like. If the law changes in your favor and you base your life on it, literally, same-sex marriage declared 10 years ago to be constitutional, which means you can go get marriage licenses and marry the person of your choice.

8:21You rely on that to your detriment if

8:24Michael Popok:that is ripped away from you. That's the reliance interest. So Amy Coney Barrett, while she was shilling her biography, autobiography, over the summer, said out loud in her book that things like same-sex marriage, things like marriage, the right to have children, reproductive contraception are not things that we're going to take away from people because of the reliance interests, right? Too much has been already invested by people in these rights to ever rip them away. Now, the way they sleep at night is they say the reproduction or abortion doesn't fall into the category of reliance because people aren't necessarily relying on abortion in order to do their family planning in the future.

9:16Michael Popok:So if they lose the right, It's not the same type of reliance as if you got married and had children in reliance on a constitutional principle, right? That's how they justify it. I'm not sure that's right. I'm just telling you how they think. We need to understand how they think in order to analyze this. I got a secret. I'm obsessed with my Lola blanket. From the moment I pulled it out of the box, I could tell that this wasn't your average throw. The faux fur is unbelievably soft, like luxury level soft. And it just makes my space feel calm, inviting, and put together. Even here in Miami, I love wrapping up with it at the end of a day.

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10:38Michael Popok:Just head to lolablankets.com and use code LEGALAF for 40 % off. After you purchase, they'll ask you where you heard about them. Please support our show and tell them that we sent you. So put Amy Coney Barrett over with Ketanji Brown-Jackson, Kagan, and Sotomayor, right? So that's four votes against overturning same-sex marriage. But you only need four to bring it up on appeal and five to overturn. And so where you have five votes left, that means they'd have to run the table and get Alito and Roberts and Kavanaugh and Gorsuch all together. And I don't think they're ever going to do that because even Alito, in a speech he gave at a conference over the summer, also said that reliance interests would mean that things like same-sex marriage would not be taken away to sort of temper, you know, tempered down expectations that he would vote to overturn same-sex marriage.

11:40Michael Popok:So if they lost Alito and they lost Amy Coney Barrett, that means they've got to get Gorsuch, Kavanaugh, Roberts, and Thomas. And where were they going to get the fifth vote from? So I don't see Roberts doing it, at least not this particular one. And so you'd only have four left, and where would you get the fifth vote from? So even if you get the four votes to bring it up into an appeal from the Supreme Court, because that's how they vote, where are you getting the fifth vote from? And they know it. That's why I believe there wasn't a statement that was issued along with the denial today. We may see one next week.

12:21Michael Popok:We'll keep a close eye on it. And I know everyone's, there's one more conference I'm waiting on and then the final nail will be in the coffin. But I believe it's already there. I think the nail's already hovering above the coffin. I think next week we're going to get it. We're going to get it. It's good news. I would hate to live in an America where 850 ,000 couples, 1.6 million people lose the right to marry the person of their choice, constitutional right, and leave it to the states. So we'd be back to the Civil War. You know, 23 states would allow same-sex marriage. You know, the 27 states wouldn't.

12:59Michael Popok:And what about the 300 ,000 children caught in the middle of people they call their parents? I mean, I just don't see how that would ever, how you unscramble that egg. And I'm glad the Supreme Court doesn't seem to be at present for. Does it mean in the future with a different, less disgusting plaintiff than Kim Davis? They couldn't bring this up to the Supreme Court again. So I don't want to say we're out of the woods because how many times did they go after Roe versus Wade over 50 years? a number of times, you know, 10 or more, until they finally got the numbers in June of 2022, and they overcame, and the Dobbs decision came out.

13:38Michael Popok:That was the one, if you remember, that was leaked in March, and then finally entered in June. But we already knew where it was going, written by Alito. So if Alito, who wrote Dobbs, doesn't believe he can take away a constitutional right to same-sex marriage, and you know he wants to, let me just leave it at that. Come on, the monarchy Catholic right, right, MAGA right wing of Alito. He would love, if he thought he had the numbers, he would pull that out in a heartbeat, but he doesn't have it. And that's a good thing. So we'll keep a close eye on it. I'll try to get Robbie Kaplan on to talk to you and brief us in an interview on Legal AF.

14:14Michael Popok:In the meantime, in our fast moving stories, come to Legal AF YouTube. We're going to crack that 1 million barrier in about a year. We've been working hard at it. We're at 926 ,000. I think at the rate we're going, we're going to get there in about six weeks. Check to see if you are subscribed. And if you're not in it, people ask, how do you keep Legal AF on the air? How do you do 40 videos a week, Popak, along with your contributors? That's how we do it. We have an amazing subscriber base, a fervent audience in support in this fellowship. We're protecting each other's First Amendment rights. And then slide over to Legal AF Substack and do the exact same thing.

14:50Michael Popok:Become a member there. And if you can help fund us, that's great. That's what pays the bills for everything that we do is the$6.77 a month that we charge on Legal AF Substack to become a paid member. So until my next report, I'm Michael Popak. Can't get your fill of Legal AF? Me neither. That's why we formed the Legal AF Substack. Every time we mention something in a hot take, whether it's a court filing or a oral argument, come over to the Substack. You'll find the court filing and the oral argument there, including a daily roundup that I do call, wait for it, Morning AF. What else? All the other contributors from Legal AF are there as well.

15:26Michael Popok:We got some new reporting. We got interviews. We got ad-free versions of the podcast. And Hot Takes, where? Legal AF on Substack. Come over now to free subscribe.

16:01We'll be right back.

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