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June 18, 2021 - The Ben Shapiro Show

51:19

Supreme Disappointment | Ep. 1279

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	The Supreme Court rules 7-2 to uphold Obamacare and votes unanimously to protect a Catholic foster care service, but on the narrowest possible grounds.
	And Congress declares Juneteenth a national holiday in bipartisan fashion, but the left is fighting mad about it.
	I'm Ben Shapiro.
	This is the Ben Shapiro Show.
	For peace of mind whenever you go online, visit expressvpn.com slash ben.
	We'll get to all the news in just one moment.
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	Alrighty, so yesterday the Supreme Court came down with a couple of big decisions.
	Both were somewhat expected.
	Both were, I would say, disappointments for conservatives.
	And you're seeing some conservatives today spin these decisions as not super disappointing for conservatives, but they're disappointing for conservatives.
	One of them less so than the other.
	So the first one was sort of expected.
	There was a case that was brought to the Supreme Court.
	The case was basically that Obamacare ought to be struck down in its entirety, which of course would throw the healthcare system into a bit of a mess, considering that Obamacare has now been implemented in the United States for nigh on a decade.
	And that means that it would undo a lot of what's already been done in terms of Obamacare options available, a number of people who are already on Obamacare options and subsidy schemes that have been created.
	Now, the reality when it comes to Obamacare is that Obamacare has not been the sort of panacea that everybody on the left suggested it was going to be.
	It has not been sort of the end of the world as some of us thought that it would be, but it certainly has not succeeded in bringing down the price of healthcare overall.
	Megan McArdle over at the Washington Post has a very good piece on this.
	She points out that some of her critiques, she's a big critic of Obamacare, some of those critiques were right.
	Some of them were a little bit overblown.
	First, I doubted we would improve our overly complex Balkanized healthcare system with yet another major program that would make it even more complicated.
	Second, I feared committing more than $100 billion to new spending every year at a time when we hadn't even figured out how to pay for existing entitlement programs.
	Third, I worried that having the government subsidize even more of our medical bills would lead to price pressure, particularly on pharmaceuticals and medical devices, which in turn would reduce incentives for innovation.
	And fourth, I simply didn't believe many of the claims supporters were making, explicitly or implicitly.
	About Obamacare dramatically reducing healthcare costs or bankruptcies or infant mortality or improving lifespans.
	So, the complications of the healthcare system remain complications.
	Right?
	So, she was right about that.
	The system has not gotten any simpler for pretty much anybody.
	Also, with regard to innovation, innovation continues to happen in the American healthcare system.
	That is largely the result of the American healthcare system still, after Obamacare, being more privatized than European healthcare systems, and also due to the fact that we provide pretty serious patent protection for our drug and pharmaceutical manufacturers.
	Now, obviously, there are attempts to roll that back and to Allow the American healthcare system to bargain collectively with pharmaceutical makers.
	And you've seen the Biden administration try to crack down even further on innovation by doing things like getting rid of patent protection for mRNA vaccines that just saved the world from this pandemic.
	As far as the fiscal crisis, yes, Obamacare costs a lot of money.
	Also, we are spending more money than God anyway, is the point that Meghan McArdle is making.
	But the final sort of concern, which is that this wasn't going to bring down costs, that is exactly right.
	As Meghan McArdle points out, Obamacare supporters talked a lot about illnesses contributing to more than half of all bankruptcies, which implied there should have been a sharp decrease in 2014 when Obamacare took effect.
	There was not.
	Also, infant mortality has not decreased.
	It's pretty much the same.
	Also, Obamacare supporters claim that tens of thousands of people were dying every year because they didn't have health insurance.
	And that suggested that by 2019, our mortality rate should be substantially lower.
	Instead, mortality rates actually leveled off around the time of Obamacare.
	They said that they were going to reduce healthcare costs, and that didn't happen either.
	Okay, so bottom line is, Obamacare hasn't done much except add to the costs and add to the complications.
	The one thing that Obamacare really did is it again shifted the nature of the balance between the government and the American citizen.
	This is the problem with the original Obamacare Supreme Court decision and Obamacare in its essence, which is before this, there was no notion in American law.
	Before Obamacare, there was no notion in American law, really, that the government could punish you for living and not doing something the government wanted you to do.
	Typically, you would have to violate a law.
	But now, thanks to Obamacare, The federal government could mandate that you purchase a product, right?
	That was the new thing.
	The federal government getting into the business of forcing you to purchase a product.
	Now, you'll remember that the federal Congress does not have the power to do that.
	The federal government has the power to tax, but the federal government does not have the power to issue some sort of penalty fee for you not buying a product, which is why the original Obamacare case was twisted by John Roberts, who is truly a bad Chief Justice.
	It was twisted by John Roberts in order so that Obamacare would be preserved.
	The way he did this is he completely rewrote Obamacare law, and he suggested that Obamacare itself was not a penalty, right?
	The individual mandate was not a penalty, attaching, if you didn't buy Obamacare or have health insurance.
	Instead, Obamacare was a tax, right?
	The individual mandate wasn't a mandate, it was a tax.
	It wasn't a fee, it was a tax, because the government has the power to tax.
	And the people who criticized this said, well, it doesn't say anywhere in the law it's a tax.
	The people who are arguing in favor of the individual mandate explicitly said it was not a tax.
	And not only that, what sort of tax applies only to people who do X or to do Y?
	Right.
	That doesn't that doesn't make any sense.
	Taxes typically apply to an entire spectrum of activity.
	They apply to anybody who owns it.
	Property taxes apply if you own a house.
	Here, you're getting a tax if you don't do something the government wants you to do, which is really weird.
	That's normally like a penalty.
	Okay, so the original Obamacare decision was a travesty of justice.
	It was originally.
	Then, there was a second case that was brought against Obamacare, and it pointed out that Obamacare's language had been explicitly designed to provide subsidies for particular states But not via the federal government, okay?
	And it was a little bit complex, but the bottom line is that it was actually a pretty good claim.
	The Supreme Court threw that out also in order to preserve Obamacare, because again...
	Chief Justice John Roberts believes that his sole role in the American governing system is to, quote-unquote, preserve the legitimacy of the Supreme Court.
	What this has meant in practice is preserving heavy pieces of legislation that are left-wing status quo, and then curbing any sort of judicial pushback to the legislative overreach of the left.
	So whenever there's a left-wing decision that really preserves a large piece of legislation, Then John Roberts is on board because he doesn't believe in quote-unquote judicial activism.
	Now, he has redefined judicial activism to mean something different than it actually means.
	Judicial activism typically means that you are reading your own priorities into the law.
	John Roberts has redefined that to mean anytime the Supreme Court overrules Congress on a major issue, this is quote-unquote judicial activism, which is silly.
	Literally, the job of the Supreme Court, if you believe in judicial review, is to overrule the Congress when the Congress is in conflict with the Constitution.
	John Roberts believes that when the judiciary is in conflict with the legislature as a general rule, that's a bad thing for the judiciary.
	And therefore, you can constantly find him trying to uphold very controversial pieces of legislation, up to and including Obamacare, simply by rewriting the laws.
	So, when it comes to the left, he wants to preserve the law in order to, quote-unquote, preserve the Supreme Court.
	When it comes to decisions on the right, you'll find him seeking unanimity Rather than creating wide-sweeping decisions that actually protect liberty.
	So instead, he will attempt to go for a 9-0 decision that limits the scope of liberty instead of going for like a 6-3 decision in which he would be in the majority that expands the scope of liberty.
	Okay, so we'll get to that part of John Roberts and what he did yesterday in just one second.
	Because again, I think John Roberts was a terrible pick.
	I was one of the few conservative commentators in America who suggested when John Roberts was picked that he would in fact be a bad pick.
	I said Alito was going to be good.
	I thought Gorsuch was going to be better than he has been so far.
	I thought that Barrett is an excellent pick.
	I was kind of wishy-washy on Kavanaugh, but Roberts I actually just opposed straight out at the very beginning.
	Okay, and there's a reason for that.
	So we'll get to the rest of this Obamacare case and what exactly happened yesterday, because it was sort of a bizarre decision.
	Again, 7-2.
	We'll get to that in just one moment.
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	All right, so this Obamacare decision, there was a, so basically, The Congress under Donald Trump in 2017.
	Republicans controlled Congress.
	And you remember, there was this big fight over whether to repeal Obamacare.
	And remember John McCain standing up there and giving the thumbs down and the left cheering and all of that.
	Well, one thing Congress did do is they effectually got rid of the individual mandate.
	The way they got rid of the individual mandate, which creates all sorts of problems for the funding of Obamacare generally, because if you can't punish people for not getting Obamacare, then why exactly would they get Obamacare in the first place?
	That really was the big question.
	What Congress did is they took the individual mandate, quote unquote, tax down to zero dollars.
	Now, this provided sort of a problem because if the idea from the Supreme Court is that Obamacare's individual mandate was not a fee, it was not a penalty, it was a tax, then once you take the tax down to zero, it's no longer a tax.
	Okay, well, if it's no longer a tax, then the entire funding mechanism for the bill sort of tends to fall apart, or at least part of the funding mechanism tends to fall apart.
	And the argument states we're making is that that provision of the bill, this quote, tax, which makes the bill constitutional, is no longer effectual, right?
	There is no tax anymore.
	So there is no actual way for the bill to be constitutional.
	So this was the issue before the Supreme Court.
	It seems sort of technical.
	And it is, in fact, sort of technical.
	So technical, in fact, that the reason this decision is 7-2 is because Justice Thomas, who of course is the most conservative member of the court, the most originalist member of the court, and a seminal figure in American legal thinking.
	I'm a bigger fan of Justice Thomas than I was even of Justice Scalia.
	I like Scalia a lot.
	I think Thomas is a superior justice in a variety of ways.
	In fact, if you want to know more about Justice Thomas on a personal level, you should go check out a brand new documentary that we have over at Daily Wire, right now streaming, Created Equal.
	You can go check that out.
	We'll talk about that a little bit later on in the program because it really is great, but...
	Justice Thomas, he put out a concurrence.
	He ruled in favor of upholding Obamacare here.
	Why?
	He acknowledges full well that the states are correct, that once you get rid of the individual mandate tax, that the tax itself is no longer operative.
	And once it's no longer operative, the entire bill could theoretically become non-operative.
	He agrees with this basic argument.
	So here is what Justice Thomas writes in his dissent, or rather in his concurrence.
	He says, according to the government, the mandate was, quote, necessary to make other reforms effective.
	It noted that Congress's findings expressly state that enforcement of those provisions without a minimum coverage provision would restrict the availability of health insurance and make it less affordable, the opposite of Congress's goals in enacting the Affordable Care Act.
	It was widely thought that without the mandate, much of the act, and perhaps even the whole scheme, would collapse.
	This court also embraced that view when it re-encountered the act in 2015.
	That was another case.
	This is the second case I talked about where they upheld Obamacare, where they redefined the state to mean state or federal government.
	The court explained that quote Congress had found that the guaranteed issue and community rating requirements would not work without the mandate but times have changed.
	In this suit, the plaintiffs assert the mandate is unconstitutional because it no longer imposes financial consequences and thus cannot be justified as a tax.
	to get rid of the individual mandate and the Obamacare entirely.
	In this suit, the plaintiffs assert the mandate is unconstitutional because it no longer imposes financial consequences and thus cannot be justified as a tax.
	Given that the mandate is unconstitutional, other portions of the act that actually harm the plaintiffs must fall with it.
	Now the current administration contends the mandate can in fact be severed from the rest of the act.
	Okay, but here's the bottom line.
	Bottom line is that what Justice Thomas finds as well, he says that the plaintiffs here have a pretty good case that the entire act is unconstitutional.
	And they don't actually have standing in order to bring the case.
	So standing, as we've spoken about on the program before, standing is a doctrine that says that you can only sue to get rid of a law if the law has done you some damage, if the law has done you some harm.
	So if a bus were to hit one of my producers, I cannot sue you for that.
	It has not harmed me personally.
	My producer's family could sue, but I can't sue.
	I don't have standing.
	Same thing here.
	So basically, Thomas says, if you get rid of the individual mandate to the extent that there's a $0 tax, There's effectively no damage done to the states.
	The state can't actually sue.
	The states instead, sort of, kind of, but didn't really make the argument that the whole act hurts them.
	And so if you can use this as a lever to get rid of the whole act, that gives you standing.
	He rejects that standing argument.
	So that's the Obamacare decision.
	Okay.
	And the Obamacare decision, again, not totally unexpected.
	Even people on the right sort of thought that the case itself was somewhat weak.
	That's not where I think the real disappointment is.
	It's not really, in this case, upholding Obamacare.
	Again, the big cases against Obamacare were brought in 2012, and those cases were rejected by the Roberts Supreme Court on really flimsy grounds.
	The real disappointment that I have is for a decision the conservatives supposedly won.
	This brings us to the second decision.
	A lot of conservatives yesterday were very excited about this decision.
	I am far less sanguine about this position, and this is the decision where I am super ticked off at John Roberts.
	So, the case, which we have discussed briefly on the show before, This is a case in which there is a so-called anti-discrimination law in Philadelphia.
	And that anti-discrimination law basically says that no contractor with the city government of Philadelphia is allowed to discriminate on the basis of sexual orientation.
	That is what the law says.
	And this comes into conflict pretty clearly with Catholic adoption and foster agencies.
	So Catholic adoption and foster agencies You're a 16-year-old Catholic girl.
	You get pregnant.
	You have a baby out of wedlock.
	You want to give it up for adoption or you want to put it in foster care.
	But you want the family that adopts to have the same principles that you hold religiously.
	And so you want that baby to be fostered by a male-female married couple.
	Which until, like, literally the last five minutes, pretty much, was considered the norm in American life.
	And pretty much throughout the world, right, was that a baby needs a mother and a father.
	This was considered an extremely uncontroversial statement for nearly all of human history, was that a baby needed a mother and a father.
	Now, it is considered discriminatory if you say that a baby needs a mother and a father, or that a mother-father married couple should be preferred to any other form of family formation, whether you're talking about two men, two women, two brothers, two sisters, a single woman, a single man, or any other form of family.
	And then all other things being equal, right?
	And that's always the key.
	All other factors being held equal, you prefer a male-female couple because the child needs a mother and father.
	Okay, so Catholic adoption agencies and foster agencies still hold by this.
	This led the city of Philadelphia to basically suggest that they would no longer do work with Catholic foster agencies.
	In fact, Catholic foster agencies would not be allowed to work because they have to work with Child Protective Services and the city.
	They would no longer be allowed to operate in the city limits, basically, of Philadelphia because they preferred male-female couples to male-male or female-female or single-female or single-male families.
	So this was elevated to the Supreme Court on religious freedom grounds, right?
	The idea being that this is a basic violation of religious freedom, which it very, very clearly is.
	The court ruled my nothing in favor of the Catholic Adoption Agency and Foster Agency.
	So why am I pissed off?
	The reason I'm pissed off is the grounds of the decision, because as always with the Roberts Court, he prefers unanimity and narrowness over a divided court with a broad ruling.
	And that's a serious problem for future precedent.
	So, here is how CNBC reports this.
	The Supreme Court on Thursday delivered a unanimous defeat to LGBT couples in a high-profile case over whether Philadelphia could refuse to contract with a Roman Catholic adoption agency that says its religious beliefs prevent it from working with same-sex foster parents.
	Chief Justice John Roberts wrote in an opinion for a majority of the court that Philadelphia violated the First Amendment by refusing to contract with Catholic Social Services once it learned the organization would not certify same-sex couples for adoption.
	Roberts wrote, The free exercise clause of the First Amendment, applicable to states under the 14th Amendment, provides Congress shall make no law prohibiting the free exercise of religion.
	As an initial matter, it is plain that the city's actions have burdened CSS's religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs.
	So the question in this case is whether the Supreme Court was going to overrule another Supreme Court decision that was called Employment Division v. Smith.
	It's a very famous Supreme Court decision in which actually Justice Scalia wrote the decision and he set a standard for when a law conflicts with religious freedom, how we rule.
	I believe in that case, if I'm not mistaking, I believe the case was that there was a drug law and it came into conflict with a Native American religious group that used peyote as some sort of hallucinogen in their religious practice.
	And what he said is a law of neutral applicability That affects religious people differently is not in fact a violation of freedom of religion.
	Now the problem with that basic concept, and conservatives have been sort of up in arms with employment division versus Smith ever since, since 1990, was that this actually treats freedom of religion differently than any other freedom in the American Constitution.
	Because the reality is that every other freedom in the American Constitution, we don't say that if there's a law of neutral applicability and it just happens to infringe on your freedom in this particular area, well, you know, so be it.
	So for example, if we said that there's an anti-discrimination law and this anti-discrimination law prohibits discrimination in any field of endeavor, it also happens to infringe on your ability To say a thing, right?
	It infringes on your ability to speak freely.
	We would have to have a pretty serious First Amendment discussion as to what level of anti-discrimination law is applicable there.
	Right?
	And this holds true.
	Let's say that there was a law that just was intended on cracking down on the ability to disseminate particular types of printed material and a crackdown on free press.
	Okay, well, we would make sure there was a pretty big carve out there for freedom of the press.
	But when it comes to freedom of religion, we're going to treat that just as though there's no extra stake for the U.S.
	government in preserving freedom of religion as opposed to anything else in American life.
	That obviously is not true.
	Okay, there's, like, Employment Division v. Smith has been a very controversial case for a very long time, and the standard Scalia sets there is not one that really comports with the original meaning of the Constitution.
	And I rarely say that about Scalia, but I really think that's true in Employment Division v. Smith.
	Justice Thomas tends to feel the same way.
	So, here is the problem with this particular decision.
	It does not take on Employment Division v. Smith.
	Instead, what it did is decide this case on extremely narrow grounds.
	So Roberts said that the city's non-discrimination policy was not generally applicable.
	Instead of him saying generally applicable non-discrimination policies still have to make carve-outs for religion, instead of him saying that, which would be understandable and would have been much more protective of religious freedom, instead what Roberts said is he sort of gamed it.
	He said, well, you know, this particular policy is not a neutral policy.
	This one is, so if they made it a neutral policy, maybe they could crack down on religion.
	But since it's not really a neutral policy, they can't crack down on religion.
	They did the exact same thing.
	Justice Roberts did the exact same thing in the Jack Phillips masterpiece cake shop case.
	And people on the right were sure, oh, it's great.
	And I was very critical of that decision because I said, here is the problem.
	In that case, very similar case, there's an anti-discrimination law in the state of Colorado.
	It was brought against Jack Phillips, who again is now being subjected to actual discrimination in the state of Colorado on the basis of religion day in and day out.
	In that particular case, the Masterpiece Cake Shop case, Jack Phillips was told by a gay couple that they wanted him to bake a cake for their gay wedding.
	And he said, listen, I'm happy to sell you a cake, I'm happy to provide you a cake just as gay people, but I'm not going to participate in a gay wedding because I'm a religious Christian.
	And they sued.
	And the Supreme Court, instead of saying, he has a religious right to practice his religion, instead of them saying that very clearly, instead what they said is, well, the way that the Colorado Human Rights Commission adjudicated the case demonstrated that they had animus for him, but if they didn't demonstrate they had animus for him, then maybe they could have forced him to bake the cake.
	Which again, does not protect religious rights.
	And it's the same thing here.
	Justice Roberts was successful in curtailing this decision down to its narrowest possible scope so that he could get Kagan, and Sotomayor, and Breyer on board.
	Who gives a crap about getting a 9-0 decision?
	Hey, anybody who is concerned with constitutional principles should be far less concerned with getting a 9-0 decision that quote-unquote upholds the integrity of the court than they should be with preserving religious freedom rights under the First Amendment to the Constitution.
	And that's why I'm kind of fighting mad over this particular decision.
	Robert said, no matter the level of deference we extend to the city, the inclusion of a formal system of entirely discretionary exceptions in its foster care standards renders the contractual non-discrimination requirement not generally applicable.
	So again, he's just making excuses.
	And this is what he does.
	He makes excuses to uphold government power.
	And when he strikes down government power, he does so on very narrow grounds that basically still upholds governmental power.
	He's a bad chief justice.
	I'm going to bring you some of the dissents in this case in just one second because they're quite important.
	We'll get to that momentarily first.
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	Okay, so as I say, this decision on religious freedom is extremely, extremely narrow, and it's a problem.
	So Justice Alito writes a dissent in this case.
	It's a concurrence.
	I keep saying dissent, but it's a concurrence, in which he says this is way too narrow.
	He says, this case presents an important constitutional question that urgently calls out for review.
	Whether this court's governing interpretation of a bedrock constitutional right, the right to free exercise of religion, is fundamentally wrong and should be corrected.
	In Employment Division v. Smith, the court abruptly pushed aside nearly 40 years of precedent and held that the First Amendment's Free Exercise Clause tolerates any rule that categorically prohibits or commands specified conduct so long as it does not target religious practice.
	Even if a rule serves no important purpose and has a devastating effect on religious freedom, the Constitution, according to Smith, provides no protection.
	This severe holding is ripe for re-examination.
	So, what they were saying is, we basically had six justices who were ready to overrule Employment Division v. Smith.
	We were ready to do it.
	We were ready to go back to the, I believe it was the so-called Lemon Test, in which we actually examined whether religious practice came into conflict with neutral law and carved out exceptions for religious practice.
	There's no question, says Alito, that Smith's interpretations can have startling consequences.
	Here are a few examples.
	Suppose that the Volstead Act, which implemented the Prohibition Amendment, had not contained an exception for sacramental wine.
	The Act would have been consistent with Smith, even though it would have prevented the celebration of a Catholic Mass anywhere in the United States.
	Or suppose that a state, following the example of several European countries, made it unlawful to slaughter an animal that had not first been rendered unconscious.
	That law would be fine under Smith, even though it would outlaw both kosher and halal slaughter.
	Or suppose that a jurisdiction in this country, following the recommendations of medical associations in Europe, banned the circumcision of infants.
	The San Francisco Ballot Initiative in 2010 proposed just that.
	A categorical ban would be allowed by Smith, even though it would prohibit an ancient and important Jewish and Muslim practice.
	Or suppose that this court, or some other court, enforced a rigid rule prohibiting attorneys from wearing any form of head covering in court.
	This rule would satisfy Smith, even though it would stop Orthodox Jewish men, Sikh men, and many Muslim women from appearing.
	Many other examples could be added.
	We may hope that legislators and others with rulemaking authority will not go as far as Smith allows, but the present case shows the dangers posed by Smith are not hypothetical.
	The city of Philadelphia has issued an ultimatum to an arm of the Catholic Church.
	Either engage in conduct that the Church views as contrary to the traditional Christian understanding of marriage, or abandon a mission that dates back to the earliest days of the Church, providing for the care of orphaned and abandoned children.
	Many people, says Alito, believe they have a religious obligation to assist such children.
	Jews and Christians, regardless, is a scriptural command.
	It is a mission that the Catholic Church has undertaken since ancient times.
	In the new world, religious groups continue to take the lead.
	The first known orphanage in what is the United States was founded by an order of Catholic nuns in New Orleans around 1729, during the latter part of the 19th century.
	And continuing into the 20th century, the care of children was shifted from orphanages to foster families.
	But for many years, state and local government participation in this field was quite limited.
	Whether with or without governmental participation, Catholic foster agencies in Philadelphia and other cities have a long record of finding homes for children whose parents are unable or unwilling to care for them.
	Recently, however, the city has barred Catholic social services from continuing this work.
	Because the Catholic Church continues to believe that marriage is a bond between one man and one woman, CSS will not vet same-sex couples.
	As far as the record reflects, no same-sex couple has ever approached CSS.
	But if that were to occur, CSS would simply refer the couple to another agency that is happy to provide that service.
	There are at least 27 other such agencies in Philadelphia.
	That didn't matter to Philadelphia.
	They wanted to crack down on CSS.
	Regrettably, the court declined to confront Employment Division v. Smith, says Alito.
	Instead, it reverses based on what appears to be a superfluous and likely to be short-lived feature of the city's standard annual contract with foster care agencies.
	Smith's holding about categorical rules does not apply if a rule permits individualized exemptions, and the majority seizes on the presence of the city's standard contract of language, giving a city official the power to grant exemptions.
	The city tells us it has never granted such an exemption and has no intention of handing one to CSS.
	But the majority reverses the decision below because the contract supposedly confers that never-used power.
	That decision might as well be written on the dissolving paper sold in magic shops.
	The city has been adamant about pressuring CSS to give in.
	If the city wants to get around today's decision, it can simply eliminate the never-used exemption power.
	If it does that, voila, today's decision will vanish, and the parties will be back where they started.
	This is exactly right, and this is why I am super mad at Justice Thomas.
	At Justice Roberts, rather.
	Justice Roberts.
	has been disgracefully committed to the idea that the role of the Supreme Court in American public life, in terms of how many people respect it, is significantly more important than the actual protection of the Constitution of the United States.
	And that is simply wrong.
	And again, as Alito points out, the Employment Division vs. Smith notion basically discriminates on the basis of freedom of religion in a way that it simply would not allow for any other amendment in American law.
	This particular decision was an opportunity.
	It was a blown opportunity.
	It was blown because Roberts, who's the Chief Justice and has the ability to do so, decided to cobble together a unanimous decision rather than simply cobble together a solid majority decision that actually protected religious freedom in a time when religious freedom is seriously under assault.
	That is a huge Crazy mistake.
	And again, it's not a mistake by Roberts, because this is what Roberts thinks the court is there to do.
	Basically, uphold the whim of the legislature, and when you can't do it, then you redraw the law, or you find some very narrow excuse to strike down the law, allowing the legislature, or in this case, the City Council of Philadelphia, to go back and rewrite the law, allowing them to do exactly what they want a second time around.
	What a failure Roberts has been, and what a disgrace to the Supreme Court this is.
	It really is a bad decision, in the same way that the Masterpiece Cake Shop decision was a bad decision, and has led to the unending harassment of, again, Jack Phillips.
	It's going to get worse, guys.
	If Employment Division v. Smith is upheld, you will see that the sort of anti-discrimination law that is now being promoted by the city of Philadelphia and is common in cities across the nation is going to be used to crack down on any religious organization that engages in any sort of activity that crosses streams with the government's authority.
	I've said for a long time, I think that it is very much in the near future that in places like California, Tax-exempt status for religious schools is going to be removed.
	Accreditation for religious schools will be removed.
	I think that is not a question of if, I think it is merely a question of when, and I think the answer is pretty soon.
	And the Supreme Court could have stopped all that.
	They decided not to because Justice Roberts is too concerned with his own vision of unanimity and upholding the institutional, quote-unquote, integrity of the court, while completely undermining that integrity.
	Because again, the court is, in fact, supposed to be, it is its job, to be an anti-democratic piece of constitutional machinery defending fundamental rights under the Constitution.
	If it doesn't do that, it's not doing its damn job.
	And that is exactly what happened here.
	Alrighty, in just a second, Controversy breaks out over Juneteenth.
	First, let me tell you about how to relieve your carsickness.
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	The technology was originally developed over 20 years ago in hospitals to relieve nausea for patients.
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	ReliefBand stimulates a nerve on the wrist.
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	Already, it is that time of the week when I give a shout out to a Dailyware member.
	Today, it's Sharon B on Twitter, who knows how to battle these hot Florida days.
	In this picture, Sharon and her daughters are striking a cheerful pose in front of Cinderella's castle.
	Yes.
	Fantastic.
	That is some solid momming right there and a happy belated birthday to your daughters as well.
	Thanks for the pic.
	Thanks for being a Daily Wire member.
	place on earth visiting Disney's Magic Kingdom with my twins for their birthday. Hashtag leftist here's tumblr. Fantastic that is some solid momming right there and a happy belated birthday to your daughters as well. Thanks for the pic. Thanks for being a Daily Wire member. Also, I have an exciting announcement for you today.
	It all starts with October 15th, 1991.
	That is the day the United States Senate voted 52 to 48 to confirm Clarence Thomas to the highest court in the land.
	However, while that was an incredible feat for any American, he fought harder than most to accomplish it.
	In the documentary, Created Equal, we are shown Clarence Thomas' rise from the segregated South to Associate Justice of the Supreme Court, one of the most important justices in Supreme Court history, and the all-out war that was waged on him by Anita Hill and the left during his confirmation.
	Now, Amazon has removed the historic and moving documentary.
	They actually took it down during Black History Month.
	The Daily Wire has decided to step in.
	We have acquired the North American streaming rights.
	That's right.
	You'll be able to add created equal to your Daily Wire queue.
	So, get ready.
	It is streaming live tonight at 9 p.m.
	Eastern, 8 p.m.
	Central for all Daily Wire members over at dailywire.com.
	If you're not yet a Daily Wire member, join now with Code Justice for 20% off your membership.
	Get ready for a live stream unlike any other.
	Take a look at the trailer.
	I was never gonna be white.
	The problem is I could never go back completely to the world I came from.
	I saw what I had become.
	And then I asked God, if you take anger out of my heart, I'll never hate again.
	You're not really black because you're not doing what we expect black people to do.
	That's when all heck broke loose.
	So you'd still like to serve on the Supreme Court?
	I'd rather die than withdraw from the process.
	It's a really, really solid piece of filmmaking and it tells one of the most important stories Let me just tell you, if Clarence Thomas had been on the left, you can guarantee there had already been biopics about him.
	They do it for Ginsburg.
	But the left just refuses to even acknowledge that Clarence Thomas exists.
	We do not.
	He's a super important figure.
	You can stream Created Equal live tonight at 9pm Eastern, 8pm Central at dailywire.com.
	If you're not yet a Dailyware member, join with Code Justice for 20% off your membership, get created equal, and all of our other great content, like my interview today with the man behind that documentary, Michael Pack, airing shortly on The Ben Shapiro Show, special hour.
	You're listening to the largest, fastest growing conservative podcast and radio show in the nation.
	Alrighty, so meanwhile, Congress declared nearly unanimously in favor of the idea of a Juneteenth holiday, right?
	A holiday that celebrates the anniversary in 1865 of slaves in Texas being notified of the Emancipation Proclamation.
	It's been celebrated as a Texas holiday for decades.
	The basic idea is that there should be a holiday that commemorates the end of slavery in the United States, which seems pretty good to me, considering the United States sacrificed several hundred thousand men in order to end slavery.
	In fact, no less a personage than Donald Trump last year called for Juneteenth to become a national holiday.
	The only reason it didn't is because there were a few Republican objections to sort of the fiscal impact of that.
	There was talk about, are there too many federal holidays and all of that.
	OK, bottom line is it passed 100 nothing in the Senate.
	Every senator voted in favor of making Juneteenth a national holiday.
	Everybody in the House except for I think 14 Republicans who had sort of similar concerns about too many federal holidays.
	Everybody else voted in favor of Juneteenth as a national holiday, and then Joe Biden signed it into law.
	Now this has caused controversy on two separate scores.
	On the one side, you have some people on the right, and they're basically just reacting to people on the left, is the truth.
	What's happening is that people on the left are saying that because Juneteenth now exists, you must acquiesce.
	to all of our legislative wishes.
	See, you don't understand the legacy of Juneteenth unless you are fine with critical race theory, unless you want H.R.
	1, unless you want all the things we want, you are dishonoring Juneteenth.
	They're treating Juneteenth the way they treat Black History Month, right?
	Oh, it's Black History Month?
	Well, during Black History Month, you definitely have to be in favor of anything Stacey Abrams says.
	It's Black History Month.
	The left does the same thing with Pride Month.
	It's Pride Month!
	How could Ron DeSantis sign a law in Florida saying that only girls should play in girls' sports during Pride Month?
	How dare he?
	Same sort of thing happening immediately upon the declaration of Juneteenth as a national holiday.
	And the answer to that is, Juneteenth is a national holiday, not just a black holiday, because Juneteenth is a celebration of America fulfilling founding promises in the Declaration of Independence as Lincoln spoke.
	It has been celebrated for decades for good reason.
	America is a magnificent place and Juneteenth is evidence that America continues to progress.
	I mean, how many civilizations in history have had hundreds of thousands of men go out and fight to liberate other human beings?
	Not many.
	The answer is not very many.
	The outcome of the Civil War and the emancipation of slaves in the United States and granting of full citizenship rights to slaves is an amazing development in American history.
	And by the way, it should be a reminder that it was the Republican Party, as always, that freed the slaves.
	It was not the Democratic Party which opposed that.
	In any case, the left has reacted with almost a sort of pathological fury at the fact that so many conservatives seem okay with Juneteenth.
	Like, they don't understand why.
	And then there are people on the right who see what the left is doing and they're like, well, if you give them an inch, they'll take a mile.
	So you should oppose Juneteenth on the basis that Juneteenth is divisive because the left is using it to be divisive.
	How about this?
	Juneteenth is unifying and the left sucks.
	How about that?
	Both of those things can be simultaneously true.
	Juneteenth should be a point of unification because it is a great and glorious moment in American history that should be celebrated.
	And also, the left sucks and is going to use any opportunity in order to club people into submission.
	So we saw some of this from Joe Biden yesterday.
	So Joe Biden, he announced, he signed the bill into law that Juneteenth is now a federal holiday.
	And then he said, but we have to do more, right?
	And this is where the right starts to react like, well, maybe we shouldn't have given him Juneteenth.
	You're not giving him Juneteenth.
	Juneteenth is a celebration of America.
	It's not a celebration of Joe Biden's stupid agenda.
	But here is Joe Biden trying to make it into a celebration of his stupid agenda.
	The truth is, it's not simply not enough just to commemorate Juneteenth.
	After all, the emancipation of enslaved black Americans didn't mark the end of America's work to deliver on the promise of equality.
	It only marked the beginning.
	To honor the true meaning of Juneteenth, we have to continue toward that promise because we've not gotten there yet.
	The Vice President and I and our entire administration and all of you in this room are committed to doing just that.
	Right, so this is why you're seeing a backlash.
	American politics is so reactionary.
	I mean, it's true everywhere, but it's so true in American politics.
	People cannot hold two thoughts at once.
	So there are a bunch of people on the left that are like, if you like Juneteenth, then you have to embrace critical race theory!
	That's literally an article that was leading Huffington Post yesterday by a woman named Taryn Finley, called the hypocrisy of honoring Juneteenth while condemning critical race theory.
	America has found itself at a contradictory point in history yet again.
	On Tuesday, the Senate unanimously passed a bill to make Juneteenth, the day that marked the end of enslavement in the United States on June 19, 1865, a federal holiday.
	I mean, that's not actually historically correct, actually.
	What Juneteenth was was an announcement two years after the Emancipation Proclamation to slaves in Texas that they were free.
	But that was actually... I mean, if you want to talk about the actual end of slavery in the United States, you have to talk about the 13th Amendment to the Constitution.
	In any case, this person argues, Social media users have pointed out how the irony of lawmakers' overwhelming support for making Juneteenth a federal holiday compared to their stalled approach to fighting current racial discrimination and injustice, including through the John Lewis Voting Rights Act.
	Ah, yes.
	Unless you believe everything the left believes, you're not allowed to celebrate Juneteenth.
	How dare you?
	It's just terrible.
	I mean, you have to respect critical race theory and believe that all of America's institutions are underscored and deeply intertwined with racism.
	Now, it seems to me that Juneteenth is actually a pretty forcible rebuttal to that.
	The Constitution of the United States was actively changed via the amendment process in order to get rid of slavery.
	It was working within the legal processes of the United States that the Civil Rights Act was passed.
	It is the processes and liberties guaranteed by the Declaration of Independence and the Constitution that have allowed for the massive change that has led to racial equality in the United States.
	That's all within the system.
	So if those systems are so bad, then why is it that we were able to alleviate so many of these problems within the system?
	In fact, Juneteenth is a celebration of the system being upheld.
	If the system had not been upheld, then you would have two separate countries in the United States.
	But again, the left-wing point of view is that you're not allowed to celebrate Juneteenth unless you also embrace everything we want you to embrace.
	Eugene Robinson at the Washington Post says the same thing.
	Again, that's just a lie.
	the anniversary of the denouement of emancipation finally reached enslaved people in Galveston, Texas, a national holiday is a victory, but it's a hollow victory at a moment when the political party that won the Civil War and made that freedom a permanent reality is now moving heaven and earth to keep African-Americans from voting. Again, that's just a lie. Okay, no one is trying to stop black people from voting. There is no voter. There is no good evidence of widespread voter suppression or even moderate voter suppression in the United States.
	It is all a lie.
	It's just as much of a lie as the notion that elections are being stolen on a wide scale with hundreds of millions of votes being like the same people who are yelling to the moon about how Biden legitimately won.
	And anybody who questions that is a big problem.
	They're saying voter suppression is being promulgated every single day without any evidence.
	And Joe Biden lies about this kind of crap.
	So here is Joe Biden lying about it while pushing Juneteenth.
	It's not going to be fulfilled so long as the sacred right to vote remains under attack.
	From restrictive laws, threats of intimidation, voter purges, and more.
	An assault that offends the very democracy, our very democracy.
	We can't rest until the promise of equality is fulfilled for every one of us, in every corner of this nation.
	That, to me, is the meaning of Juneteenth.
	Right.
	The meaning of Juneteenth is do what I want.
	Right.
	And so the predictable result has been from some on the right.
	OK, well, what if we just don't do what you want and we don't give you Juneteenth?
	And the answer is you're not again, you're not giving Joe Biden Juneteenth.
	Juneteenth has been an American holiday in Texas for many, many years because it is a celebration of America.
	America freed its slaves.
	America promulgated racial equality.
	The richest black people on planet Earth live in America.
	Average household income for black Americans is higher than average household income for black people anywhere on the planet.
	Okay, this is a wonderful, wonderful country.
	Juneteenth is a celebration of that.
	The left thinks Juneteenth is a celebration of how America sucks.
	And so the right, some, a few people, I'd say a segment of the right, is reacting to that by saying, well, if they say America sucks based on Juneteenth, let's just not do Juneteenth.
	It's all just reactionary ping-ponging.
	Okay, but you can see the left pushing this kind of crap, and it's insane.
	Okay, you have AOC doing the same thing.
	It's essentially tying Juneteenth to critical race theory.
	She said, oh, the reason that people are denying Juneteenth is because they also deny critical race theory.
	What if I like the idea of celebrating the end of slavery and also think critical race theory is bunk?
	In part because we ended slavery.
	Here's AOC being her normal genius self.
	Whether it's trying to fight against teaching basic history around racism and the role of racism in U.S.
	history to, you know, there's a direct through line from that to denying Juneteenth, the day that is widely recognized and celebrated as the symbolic kind of day to represent the end of slavery in the United States, you know, There's a direct through line between that denial of our history and wanting to understand the full scope of our history and celebrating the end, a major end of injustice in the United States.
	OK, so what the left is lying about, the left is lying.
	What they're lying about is they are tying Juneteenth to critical race theory.
	They're saying they're one and the same.
	So you can't do one without the other.
	And the right, some on the right say, OK, well, fine, so we won't do either.
	And the answer is no.
	Two things can be true at once.
	Juneteenth is good and critical race theory is bad.
	That is very easy to do.
	It also happens to be the truth.
	And you know how you fight... You can see the game the left is playing here.
	It's really a quite despicable game.
	Again, taking elements of American history that should unify us, like, you know, America ending slavery, and turning it into a point of division in order to suggest that all of America's institutions are hierarchical in nature and must be torn to the ground.
	And the fact is that I will acknowledge, I am amazed at the extent to which critical race theory has taken over our institutions.
	Truly.
	It's amazing.
	Perfect example.
	So, This week, there was a questioning for Chief of Naval Operations, Admiral Michael Gilday.
	The Chief of Naval Operations had put out a list of recommended books to members of the Navy, including Ibram X. Kendi's garbage, fascist, tyrannical, racist book, How to Be Anti-Racist.
	It is a piece of crap, that book.
	It is a terrible, terrible book.
	Again, not calling for its suppression, because I believe in free speech.
	You should read the book, and then you should recognize how stupid it is.
	Okay, but being recommended in America's military?
	A book that basically argues that America is inevitably and inherently racist and evil, and that active discriminatory measures must be taken today?
	Okay, so Admiral Gilray, or Gilday rather, was questioned by Republican Study Committee Chairman Jim Banks, and he defended all this.
	He said, no, it's very good.
	Critical race theory needs to be taught to the members of America's military.
	Now, it needs to be fought in America's military is what needs to happen.
	Admiral, why did you put this book on the reading list and recommend that every single United States sailor read it?
	Because I think it's really important to consider a variety of views.
	Admiral, you said you read this book.
	What part of this book is redeeming and qualifies Let me ask you again, Admiral.
	Do you expect that after sailors read this book that says that the United States Navy is racist, that we will increase or decrease morale, cohesion, and recruiting race into the United States Navy?
	I think we'll be a better Navy from having open, honest conversations about racism.
	It's not an open, honest conversation about racism and this is the lie that people who have now wormed their way into the heights of all of America's institutions continue to promulgate this stuff.
	This is why, and by the way, it's just, honestly, it's an avoidance technique.
	For so many members of the left who don't want to govern and be good at their jobs, it's an avoidance technique.
	You suck at your job and so you blame racism and talk about how racism is the big specter out there lurking that is causing you to suck at your job.
	This is what Mayor Lori Lightfoot is doing.
	Mayor Lori Lightfoot, a garbage mayor of Chicago.
	Shootings have been out of control under Lori Lightfoot.
	She's allowed people to just ransack Chicago's Lube.
	She's awful in every respect.
	But there is a public health crisis, she says.
	The public health crisis in Chicago weighed for a way for... It's... Rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
	And without formally acknowledging this history and reality and the continuing impact of that infamous legacy, looking at the root causes of today's challenges, we will never be able to move forward as a city and fully provide our communities with the resources that we need to live happy, vibrant, and fulfilled lives.
	That's why, ladies and gentlemen, I am here today.
	Okay, all that is is a way to avoid governing.
	That's all it is.
	Okay, so, again, celebrate the country by celebrating the good that it does.
	And recognize that the left will always attempt to use everything as a club to beat you into submission.
	And that's what the left is doing today.
	It's why the left can't just take the win.
	It's not even a win for them.
	It's why the left can't just accept the unification of Juneteenth and instead tries to turn it immediately into a divisive issue about the continuing evils of the United States.
	Which, by the way, is a message directly contrary to the message of actually Juneteenth.
	All righty, we'll be back here later today with an additional hour of The Ben Shapiro Show first.
	You can't forget to end your week by checking out The Andrew Klavan Show.
	Drew's show is every Friday.
	He's got an exciting evening planned for you, so head on over to dailywire.com this evening, 7 p.m.
	Eastern, 6 p.m.
	Central.
	Tune in.
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