Advisory Opinions – "Guns, Gays, and Birthright Citizenship"

Date: July 31, 2025
Hosts: Sarah Isgur and David French
Podcast: Advisory Opinions by The Dispatch

Episode Overview

In this episode, Sarah Isgur and David French dissect three significant and divided Ninth Circuit decisions, representing legal flashpoints related to the First, Second, and Fourteenth Amendments. They examine a challenge to Oregon’s foster care policy and religious freedom, California’s ammunition background checks under the Second Amendment, and the ongoing legal saga over birthright citizenship and state standing. The conversation is remarkably lively, mixing legal analysis with cultural asides—such as comparing Supreme Court Justices to heavy metal bands (a segment inspired by a SCOTUSblog essay)—and listener emails that touch on both jurisprudence and internet culture.

I. Foster Care, Religious Liberty, and LGBTQ+ Rights

(9th Cir. – Bates v. Oregon DHS)
Segment starts: [02:22]

Key Discussion Points

• Case Summary:
  Jessica Bates, a Christian widow and single mother, was denied participation in Oregon’s foster program because she would not agree to required policies regarding LGBTQ+ issues—especially on using preferred pronouns, attending pride events, or facilitating gender transition healthcare. These were program-wide prerequisites, not tailored to specific child placements.

• Majority Opinion:
  Ruled for Bates:

  “No one thinks, for example, that a state could exclude parents from adopting foster children based on those parents' political views, race, or religious affiliations. Adoption is not a constitutional law dead zone, and a state's general conception of the child's best interest does not create a force field against the valid operation of other constitutional rights.” ([03:48])

• Discussion & Analysis:

  • David: Strongly agrees the state cannot exclude on blanket bases (race, religion); but in actual placements, matching a child’s background may be legitimate.

    “You could not have an adoption regime that says Catholics only or Protestants only...as far as blanket prohibitions.” ([04:31])

  • Sarah: Focuses on a nuanced distinction between adoption and fostering. Notes fostering retains state custody and payments, drawing analogies to government speech and increased state discretion.

    “Fostering is different because they remain wards of the state and the state is in fact, paying for the child.” ([07:52])

  • Dissent’s Focus:
    The state is acting in loco parentis and must prioritize “best interests”—including respecting a child’s gender identity—over the applicant’s beliefs or speech. It claims religious liberty isn’t as implicated because only the treatment of children, not beliefs or worship, are at issue ([05:36]).

• Key Questions Explored:

  • Can the government exclude applicants from foster programs solely because of their beliefs or only when those beliefs translate into conduct contrary to policy?
  • Does the state’s parental status over foster children justify greater latitude in screening and placement decisions, akin to government speech rationales?

• Memorable Quotes:

  • Sarah:

    "If you adopt the child, you don't get more money from the state, but if you're fostering, you do. That does make it more like government speech." ([07:52])

  • David:

    "If the question is I can't adopt unless I also foster, then the ban on fostering is a ban on adoption." ([08:35])

  • Sarah:

    "I think the state's gonna get an enormous amount of leeway for the best interest of an individualized assessed child." ([16:42])

• Assessment of Supreme Court Interest:
  Both hosts doubt SCOTUS will take the case due to the facial nature of the program and its potentially limited impact on individualized constitutional questions.

II. Gun Rights & California’s Ammunition Background Check Law

(9th Cir. – Rhode v. Becerra)
Segment starts: [21:01]

Key Discussion Points

• Case Overview:
  Kim Rhode, an Olympic shooter and six-time medalist, challenged California’s requirement for background checks and in-person sales for each ammunition purchase. The system incurred fees and allegedly caused high erroneous denials (16% at one point).

• Majority (Akuta) Ruling:
  Background checks for ammo violate the Second Amendment.

  • Judge Akuta (Bush appointee) wrote the majority; dissent by Judge Bybee (also Bush appointee), showing that even similarly-situated judges can diverge deeply on contemporary “culture war” issues ([27:41]).

• Critical Factors Debated:

  • Is the burden minimal or severe? Dissent: it’s quick and cheap ($1 and a minute), Majority: the system’s malfunctions and high false denials make it problematic.

    “If it takes a minute and it costs a dollar, then I would say a background check requirement would be entirely consistent... But if the background check system is broken and ... wrongly denying [people], then I could easily see, for example, an injunction until they fix it.” — David ([24:08])

  • Does a background check for ammunition lack any historical analogues, as required by the Bruen test (text/history/tradition)?

• Tension in Judicial Approach:

  • Lower courts struggle with what level of generality to use in applying Bruen. Majority reads history narrowly (“nothing like this at ratification”); Dissent urges a higher-altitude comparison (laws ensuring safe/responsible weapon ownership in general).

    “Once again ... there hasn't been enough guidance from the Supreme Court. These lower courts clearly feel bound by precedent. ... They just can't figure it out.” — Sarah ([30:03])

• Mockery of "History":

  • David: derides reliance on obscure 19th-century ordinances (e.g., “an 1835 City of Cincinnati ordinance is now interpreting the Constitution...”) ([31:53])
    • Sarah: notes conflict within Supreme Court itself about what historical periods are relevant ([32:29])
    • David: sarcastically cites increasingly esoteric local rules: “I raise you an 1871 Portland, Oregon ordinance...” ([33:22])

III. Birthright Citizenship & State Standing

(9th Cir. – States v. U.S.; challenge to changes in citizenship status/EO)
Segment starts: [33:45]

Key Discussion Points

• Ninth Circuit Ruling:
  States were granted standing and a nationwide injunction against changes to birthright citizenship statutes/orders, on grounds that such rules would directly affect their citizens and administrative regimes.

• Judicial Dynamics:

  • Judges were broadly in agreement about the constitutionality of birthright citizenship itself, but deeply divided on state standing and the scope for nationwide injunctions.
  • Dissent (Judge Bumatay, “Boom Boom,” a Sarah acquaintance) argues standing is speculative and that nationwide relief is overbroad, especially in light of recent SCOTUS skepticism toward “universal” injunctions.

• State Standing is "a hot mess":

  • When, if ever, can a state sue to protect its citizens from federal law effects?
  • Precedents allow state standing where fiscal harm is alleged (e.g., Texas vs. DAPA for driver’s licenses), but future path is unclear and muddled.

    “Standing is a mess. … It is a mess.” — David ([37:28])

• Insightful Quote from Dissent:

  • Judge Bumatay:

    “Standing is another separation of powers mechanism to guard against judicial overreach... prevents the judicial process from being used to usurp the powers of the political branches.” ([40:03])

  • Sarah's take:

    “The balloon is still intact and it still has the same amount of air in it that it ever had.” ([41:39])

• Lingering Issues:
  Post-Trump v. CASA, there are workarounds (class actions, APA suits, state standing) that render the impact of universal injunction restrictions ambiguous.

IV. Cultural Segment – Supreme Court Justices as Metal Bands

(Inspired by Zach Shemtob’s SCOTUSblog piece)
Segment starts: [43:22]

Memorable Moments and Quotes

• Sarah: Admits near-total ignorance of heavy metal; David gleefully reveals ‘80s Kentucky hair-band roots and gives an impromptu tour of metal’s subgenres ([43:53]).

  “You could not grow up in the hair band era in rural Kentucky in the 1980s without having full exposure to the entire spectrum of heavy metal...” ([43:53])

• Selections & Reactions:

  • Chief Justice Roberts = Judas Priest (the court’s ultimate “institutionalist”)
  • Clarence Thomas = Bolt Thrower (for “mechanical consistency”) — David dissents: Iron Maiden, the “historical metal band.” ([46:01])
  • Sotomayor = Rage Against the Machine (genre-bending, “not really metal,” but it fits)
  • Most/least metal: Gorsuch = Celtic Frost (deep cut, “the most metal justice”), Barrett = Megadeth (parental protests always make a band cooler), Kavanaugh = Deafheaven (“Not very metal and Death Haven isn’t either, so close enough.”)

• Listener amusement:

  • Sarah: “Tell me about Megadeth.”
  • David: Stories of Striper, the evangelical-friendly “Christian hair metal” alternative. ([48:13])

V. Law as a Profession, and “The Great Professionalization Shift”

Segment starts: [49:36]

• Discussion Prompted by David Lat’s Clerk Demographics Piece:
  • More women as clerks, but older average age and more multiple-clerkship trajectories—an increasingly elite and specialized path to legal “success.”
  • Law schools are more elite than ever; path towards justiceship more narrow and academic.
  • Sarah’s thesis: SCOTUS, once a body for “impressive lawyers, governors, senators,” is now “like one of those progressive executive agencies”—experts drawn from an ultra-narrow band.

    “There is a path, a much more narrow path to becoming a Supreme Court justice... and now there is a path, a much more narrow path to becoming a Supreme Court clerk.” ([53:12])

  • David: Mild dissent—current professionalization yields higher quality opinions, more rigorous reasoning, perhaps prevents some maladies of other government branches.

    “If you read an opinion that comes out of the court now and you read an opinion ... 40 to 50 years ago, you're going to notice a qualitative difference.” ([53:12])

VI. Listener Emails – Internet Nihilism and Morality

Segment starts: [55:04]

• Favorite Listener Shout-outs:

  • A workout group practicing the Thucydides maxim:

    “The society that separates its scholars from its warriors will have its thinking done by cowards and its fighting done by fools...” ([55:05])

• Discussion on ‘Nihilist Young Men’ and Morality (prompted from previous episode):

  • Listener pushes back on Sarah’s thesis that people usually see themselves as “the good guys.”
  • Emailer describes how, in edgy online spaces, alt-right/nihilist young men “aren’t even thinking in moral terms...the point is the reaction...it’s all about the lulz.”* ([55:36])
    • “There isn't a higher purpose, there's not a thought out worldview operating here. The point, point is the reaction. The point is the outrage. And it's fundamentally nihilistic.” — David ([58:55])

• Sarah and David digress into Joker film analogies:

  • Is Joker’s revenge-driven nihilism itself a kind of morality? Does extremism online contain a value system, or is it “all for the lulz”?

    “Do you think that nihilism has its own morality? ... You're trying to show everyone that their morality is stupid and pointless and wrong, and that is in of itself a morality.” — Sarah ([61:18])

• Meta-Reflection:

  • Even tiny online nihilist subgroups have outsized effects on public discourse due to online amplification.
  • Sarah circles back to original thesis: for most, the good/bad self-conception still dominates—dangerous when it leads to overreach.

Notable Quotes (with Timestamps)

• David (re the foster case):

  “You could not have an adoption regime that says Catholics only or Protestants only or Jews only, Muslims only...” ([04:31])

• Sarah (on judicial overreach):

  “The balloon is still intact and it still has the same amount of air in it that it ever had.” ([41:39])

• Judge Bumatay (quoted):

  “Standing is another separation of powers mechanism to guard against judicial overreach...” ([40:03])

• David (on historical analogy searches in gun litigation):

  “For instance, an 1835 City of Cincinnati ordinance established that... Oh, wait, the 1835 City of Cincinnati Town Council is now interpreting the Constitution in a way that should be binding on us in 2025 or at least influential.” ([31:53])

• Sarah (on SCOTUS professionalization):

  “It used to be, you were a governor like Earl Warren, or your party's presidential nominee, like Chief Justice Charles Evan Hughes... But now there is a path, a much more narrow path to becoming a Supreme Court justice.” ([53:12])

• Listener email (read by Sarah):

  “Thank you for keeping our minds thinking as these four dudes try to cut their dad bod down to a father figure.” ([55:05])

• David (on online nihilism):

  “There isn't a higher purpose, there's not a thought out worldview operating here. The point, point is the reaction. The point is the outrage. And it's fundamentally nihilistic.” ([58:55])

• Sarah (Joker analogy):

  “Do we think that the Joker thinks he's the bad guy morally and that that's the point, or does he think that they've made him the bad guy and so by doing this he is adding value to society...?” ([59:05])

Timestamps of Major Segments

• Foster care/LGBTQ/religious liberty: [02:22]–[21:01]
• Ammunition background checks/2nd Amendment: [21:01]–[33:45]
• Birthright citizenship/state standing: [33:45]–[43:22]
• Justices as metal bands & legal culture: [43:22]–[49:36]
• Professionalization of SCOTUS/legal elite: [49:36]–[55:04]
• Listener emails—morality, nihilism, and online culture: [55:04]–end

Tone and Style

The tone is characteristically witty, conversational, and erudite. Sarah and David maneuver deftly between legal intricacies and pop-cultural digressions, never losing sight of the import of the cases but also injecting humor and humanity—especially as they engage in analogies, musical metaphors, and reader correspondence.

Final Note

Teaser:
The next episode will feature Harvard and Yale law school admissions deans—promising insight into evolving standards for legal academia’s gatekeepers.

This summary encapsulates the core legal issues, the hosts’ thoughtful (and at times playful) analysis, critical direct quotations, and navigational timestamps to guide listeners or readers seeking out particular themes or discussions.