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Smerconish

The Bias That Binds; Should Prosecutors Factors In Pardons When Charging?; Foster Battle Over Religious Beliefs; Did "Animal House" Mark Cultural, Political Turning Point?; Catholic Couple Sues Over Foster Application Denial. Aired 9-10a ET

Aired August 19, 2023 - 09:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[09:00:05]

MICHAEL SMERCONISH, CNN ANCHOR: It's the bias that binds. I'm Michael Smerconish in Philadelphia. Donald Trump is the GOP front-runner because he's been indicted four times, not in spite of those indictments. The polling data makes clear that at least thus far, the more he faces legal peril from prosecutors, the stronger his standing among Republicans, which is no doubt why his GOP rivals largely avoid confronting him for the 91 felony counts that he faces. And it's why in Ron DeSantis is prep for next week's debate, his super PAC has advised him to take a hammer to Vivek Ramaswamy but defend Trump if Trump is attacked by Chris Christie.

Here was some reaction after -- after Fulton County DA Fani Willis indicted Trump and 18 co-defendants for state RICO violations. South Carolina Senator Tim Scott said this.

(BEGIN VIDEO CLIP)

TIM SCOTT, (R) PRESIDENTIAL CANDIDATE: We see the legal system being weaponized against political opponents that is unAmerican and unacceptable.

(END VIDEO CLIP)

SMERCONISH: Vivek Ramaswamy said that should he become president, he would pardon Trump and he said this.

(BEGIN VIDEO CLIP)

VIVEK RAMASWAMY, (R) PRESIDENTIAL CANDIDATE: The reality is this. These are politicized persecutions through prosecution.

(END VIDEO CLIP)

SMERCONISH: Trump's former Vice President Mike Pence, who has criticized Trump for putting himself above the Constitution says he prefers that Trump's fate be decided, "by voters, not criminal courts." Florida Governor Ron DeSantis said, "I think it's an example of the criminalization of politics. I don't think that this is something that is good for the country." Even chris Christie, who has been consistently critical of Trump's underlying conduct told CNN, he thought that Jack Smith's 2020 election case sufficiently covers Trump's alleged Georgia charges.

(BEGIN VIDEO CLIP)

CHRIS CHRISTIE, (R) PRESIDENTIAL CANDIDATE: But I didn't think it was a necessary thing to do, once you saw that Jack Smith was charging him federally for the very same conduct, we would have these kinds of discussions amongst federal and state prosecutors when I was U.S. attorney, and we would work it out so that we didn't do these things. And I'm a little bit concerned that this had more to do with ego than anything else.

(END VIDEO CLIP)

SMERCONISH: Asa Hutchinson also questioned the overreach by the ga da only Will Hurd described the findings as, "Further evidence that Trump knew he lost the 2020 Election and was ready to do anything it took to claim to power." Christie, Hutchinson, and Hurd have been the only ones to criticize Trump directly. The rest fingers to the wind won't step out against Trump until the base tells them the coast is clear. And yet a new AP poll says 69 percent of Americans overall say they don't want Trump to run again. By the way, take a look at that other number, because that's exceeded by the 75 percent who say they don't want Biden to run again.

Among Republicans, according to the same poll, nearly two-thirds or 63 percent now say they want the former president to run again, that's actually up from the 55 percent who said the same thing in April and 70 percent of Republicans now say they've got a favorable opinion of a man who's four times indicted up from 60 percent, who said the same thing just two months ago. Think about that for a moment.

Donald Trump has seen a 10 percent increase in favourability of Republicans after being criminally charged for allegedly taking nuclear secrets to his private residence, using false claims of voter fraud, to pressure officials to overturn the results and falsifying business records to hide a hush money payment to a porn star with whom he had an extramarital affair. I happen to think that many Republicans who are part of Trump's rise in favourability, were actually prepared to discard the former president on their terms, but not when told they must.

When an interloper arrives to this political family squabble, they unify, and instead they turn their aggression on the outsider. Much like what often happens when police have to respond to a domestic dispute, which by the way, is one of the most perilous calls to which law enforcement must ever respond. It's not just a perception, it's a reality.

Here's the data. 503 officers nationwide, were killed between 2011 and 2020, 43 of them while responding to domestic disturbance or domestic violence calls. Last fall by way of one illustration, 27-year-old cop Air Force veteran killed in Colorado trying to break up a large family disturbance.

A CNN piece on this phenomena, quoted Professor John Shane of the John Jay College of Criminal Justice. He said this, people's emotions are already elevated due to whatever dispute they're involved in and now you bring the coercive power of the state. People are angry. And they're angry to see you know, knowing there's potential to be arrested and incarcerated.

[09:05:04]

This week, I tracked down Dr. Shane. He has a Ph.D. in criminal justice from Rutgers University has research interests specifically in this area. He's written a number of books and chapters. So I sent him an email with my off-the-cuff theory and I asked him if he saw parallels to how a couple in a domestic disturbance unites against an interceding police officer in comparison to how Trump seems to benefit, at least among Republicans from each indictment. I said this, I said, "In my theory, the fighting couple are like Republicans, perhaps ready to leave one another, or leave Trump, until such time as an outsider, in this case, prosecutors, police tell them they must separate and then they rebel against their interloper." And they stick together much like Republicans stand with Trump had the cop not arrived. They might have left one another. They might have had a divorce. Had Trump not been indicted, they might have moved to another candidate.

And I asked Professor Shane for his thoughts while he -- he wrote me back with some scientific underpinning of my observation. He said this, "I can see the parallels. What you describe fits the in-group out-group theory of human relations. Although the in-group members may vehemently disagree with one another, they will unite against a common enemy, the outgroup. Research shows that outgroup threat has been identified as an important driver of in-group cohesion among humans, humans tend to display a certain intolerance toward out-group behavior, such as the opposing political parties' actions and policies, and the competition for power between groups will foster group cohesion.

So in our example, politics, the in-group will more easily justify or rationalize their wrong, meaning Trump's indictments as long as it advances their agenda, i.e. power and prestige because bias tends to bind. They're biased in favor of Trump who holds sway over their constituent base.

So although the domestic violence victim in this analogy, Republicans would like nothing more than to part ways with their rancorous family member Trump, that family member Trump still comes first. Sure, we've had our differences. But blood is thicker than water. I'm always here for you, no matter what.

It makes sense, right? At least to me as an explanation as to why having been indicted four times, Donald Trump has seen his position strengthened among Republicans. There is, however, a flipside. The reaction among Democrats the exact opposite. Maybe like the neighbors who want the homes on their block to be in order, Democrats are looking on in horror, ready to take action of their own if the cops can't quell the violence.

That same AP poll that I quoted found that while most Republicans 74 percent said they would support Trump in November of 2024. Overall, 53 percent of Americans said they would definitely not support him if he's the nominee, and another 11 percent said they probably would not do so. After all, as Dr. Shane puts it, bias tends to bind.

Now, many have cited the importance of Fani Willis' indictments as being from a state not federal prosecutor because they would not be subject to a pardon should Donald Trump or another Republican president try to give one. This begs an interesting question. Is it the prosecutor's role to worry about the issue of pardons when deciding to bring charges? CNN Senior Legal Analyst Elie Honig raises this point in a piece just out on his website cafe.com. The Problem With Pardon-Proofing, Elie is here to assess (ph). OK, Elie, show the prosecutor someone in your old role ever worry this individual, this defendant may get pardoned and then act accordingly?

ELIE HONIG, CNN SENIOR LEGAL ANALYST/FORMER FEDERAL PROSECUTOR: Well, Michael, Fani Willis' DA prompted me to think in more depth about that question. And I think my answer now is no. I don't think it's proper or appropriate for prosecutors to worry about trying to counteract or prevent pardons.

Now, I base that on two main principles. The first one is the Constitution. The U.S. Federal Constitution and most state constitutions, that's the part and power in the chief executive, the President of the United States, and in most states in the governor. If you're a prosecutor, as I once was both federal and state, you are working as part of the executive branch and whose job is it then to hand out pardons? And isn't it sort of an arrogant position by -- by prosecutors to say, I'm going to try to frustrate the will of the chief executive who heads the very branch in which I work. So I start off with that institutional argument.

SMERCONISH: Elie, this is reminiscent for me. I'm sitting here listening to you and reflecting on a commentary I delivered here on CNN a week ago where I was similarly analyzing whether it's proper for prosecutors to game out the timing of a trial according to the election calendar I took the view that that's improper. Do you see parallels between the two?

[09:10:14]

HONIG: I do, because in the prosecutorial ideal, you're not thinking about politics at all. We strive to be separate from politics. Look at DOJs justice manual, look at any State AG, they will say, we have nothing to do with politics. We don't consider politics.

But part of the problem, first of all, with, as you say, Michael, with the scheduling of this trial, it's obvious. DOJ and all the prosecutors are thinking about the election, and they're trying to get it in before the election. They're not saying, by the way, but it's very clear that they're very much focused on the election. And this sort of brings me to my second point about why it's problematic for prosecutors to think about counteracting pardons. How are we deciding? We prosecutors, which pardons we're going to try to essentially undo.

If you're a federal prosecutor, and you fear a president might pardon your case, which case do you send over to the state? Which of the hundreds of pardons that every president will issue? Do you then call across the street and say, hey, DA, I want you to pick this one up? How are we making those decisions? And is it possible to separate those from politics? And I don't think it is.

SMERCONISH: So I totally get your point. It seems like it's a selective prosecution. By the way, this is not some esoteric conversation we're having if I think of Bannon, and I think of Manafort, how do they fit into what you're describing?

HONIG: Exactly. So those are two recent examples, both of those people were either charged or convicted. Federally, Donald Trump pardoned both of them on his way out of office. And what happened in both instances was state prosecutors picked up the charge. Now Paul Manafort went really poorly because state prosecutors in New York charged him after he'd been pardoned, and the state courts in New York said, no, no, you can't do that. That's not fair play.

Steve Bannon was charged federally, then pardoned by Trump on his way out of office, and then recharge by the state and that prosecution remains ongoing. But this makes my exact point. Why should Paul Manafort and Steve Bannon be re-prosecuted, but not any of the hundreds of other people pardoned by Donald Trump, Barack Obama pick your president? Are they being picked out simply because they're sort of seen as politically odious by certain prosecutors? I think that's the only answer. And I think that's unacceptable.

SMERCONISH: I get what you're saying. The same rules ought to apply to Trump no better no worse than any other defendant. By the way, people can send all their negative reaction to what you've just said to you on this one and not to me, Elie.

HONIG: Please do.

SMERCONISH: Actually, I'm going to read something.

HONIG: Bring it on.

SMERCONISH: OK. From social media, Catherine (ph), what do we have that loosely applies to what Elie and I are discussing? Put it up there. You asserted that Trump leads in the polls because of his indictments. Nonsense. You are confusing coincidence with causality.

Elie, I'm going to say so long to you. It actually applies to me and not to you. Thank you for being here as always. Catherine, can you put that back on the screen?

And I don't -- I don't know if you have the ability to do this. So this person says that I asserted Trump leads in the polls because of his indictments. That is absolutely what I'm saying. Do you have the ability now, Catherine or David to put up the full screen that shows the rise in Trump's favourability in the last two months? And regardless of whether you can find that, OK, you don't have it?

Well, it's I can tell you it's gone from 60 to 70 percent. And I asked David, and anyone else who's watching this question, what -- there it is, there you go. How else David, do you explain that Trump's approval rate was 60 percent, two months ago, and now is 70? I asked you what else has happened in the last two months pertaining to Trump. Has there been any policy speech? Has there been any new information about his record? Has he put forth any plan that you've not heard of before? Has he distinguished himself in any way? Nothing has happened.

You can make a -- you can make a case about things that have gone well or not well, for Biden, but in Trump world, the only thing that has happened in the last two months is that he's gotten himself indicted four times and his numbers have spiked. So we totally fits with the theory that I've advanced here that it is akin to an outsider coming to a domestic dispute and all of a sudden the family that's fighting, they train their -- their guns, figuratively spoke -- speaking, sometimes not with cops on the outsider.

Up ahead, even before any of these trials commence. Might Donald Trump already be ineligible to run for president? That's the argument that two conservative law professors advanced they say his conduct already has violated the 14th Amendment proviso banning candidates who engage in insurrection or rebellion.

OK, and how about this one? A Catholic Massachusetts couple alleges that their foster parent application was denied due to their religious views including on LGBTQ plus issues. They contend this violates their First Amendment rights might This proved to be yet another repercussion of the recent SCOTUS decisions? Well, I want to know what you think. Go to smerconish.com, my website, answer this week's poll question. Should prospective adoptive parents be required to pledge a willingness to be affirming of a child who may later identify as LGBTQIA.

[09:15:28]

And there's this, toga, toga, toga, the rallying cry of that 1978 frat comedy Animal House. I admit to having seen it at least 15 times in the 45 years since it was released. But I'd never considered the societal change that it unleashed. I'm going to discuss with a film critic who first saw it as a Dartmouth student at an advanced screening on campus.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Mr. Dorfman.

DORFRMAN: Hello.

UNIDENTIFIED MALE: 0.2 fat, drunk, and stupid is no way to go through lifestyle.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

SMERCONISH: Is Donald Trump right now ineligible to run for president? Meaning before any of these four trials play themselves out due to the 14th amendment which bans candidates who, "engaged in insurrection or rebellion." That's the provocative thesis in a University of Pennsylvania law review article already available online.

[09:20:16]

The author's professors William Bard of the University of Chicago and Michael Stokes Paulson of the University of St. Thomas in Minneapolis, are active members of the conservative legal group, the Federalist Society. They are proponents of originalism, which aims to determine what the original meaning was intended by the Constitution's framers.

The 14th Amendment was ratified in the wake of the Civil War. Section 3 says this, "No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath to support the Constitution of the United States, shall have engaged in insurrection or rebellion against same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."

In a summary of the peace, the authors argued that this section, "It disqualifies former President Donald Trumpm and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election." Joining me now to discuss is Ned Foley, Constitutional Law Professor at The Ohio State University where he's director of the Election Law Program. He's also a columnist for the Washington Post where he recently wrote this piece, "Forget The Trump trials. He might already be ineligible for 2024."

Professor, nice to have you back. There has been no such finding, no due process for Donald Trump. So according to you what now needs to happen?

EDWARD FOLEY, DIRECTOR, ELECTION LAW, THE OHIO STATE UNIVERSITY: Right. Well, good to be with you. I think timing is crucial here. If Trump is allowed to be on the ballot and then wins, I think he needs to be permitted to take office. That's only fair to the voters. On the other hand, if, as the article says he's already disqualified constitutionally from being president, even if he wins, then he shouldn't be on the ballot, also to be fair to the voters because voters need to be able to choose between eligible candidates.

So you're absolutely right, there needs to be a trial doesn't have to be a criminal trial can be a civil trial to adjudicate the relevant factual issues of does this constitutional provision apply to Trump's conduct.

SMERCONISH: How practical is it because now we're talking about trial number five, that this issue could be litigated and reach the Supreme Court of the United States before the Republican convention next July in Wisconsin?

FOLEY: Well, it's going to happen anyway. It -- the question is how orderly it happens. We're going to some private groups have already said they're going to try to litigate this issue, to kind of force it. I don't think that's the best way to go. I think it would be much more orderly if a legislature set a proper procedure. But your audience may know about their so-called Shadow docket of the

Supreme Court. That's where the Court hears emergency petitions. So it's going to get to the Supreme Court, probably before the primaries on the shadow docket. It'd be a lot better on the merits docket in time for the convention, as you say, next summer.

SMERCONISH: So a state legislature would authorize a State Secretary of State to disqualify him from a ballot litigation would follow that would go up the food chain. I want to ask you about this professor. I'm going to put on the screen a poll. This is the Associated Press and NORC. And voters were asked whether Donald Trump after 2020s election did more to threaten or defend democracy. I don't know that you can see this. But I've highlighted for viewers, the fact that 43 percent of Republicans nearly twice, of this opinion that he did more to defend democracy.

My point is, a lot of folks in the Republican Party see it the way that he sees it. Are you concerned that if there's some judicial determination, that he's disqualified himself because of the 14th Amendment? There could be anarchy?

FOLEY: Well, I agree with you that this is perilous times that we're in and the question is, how do we best handle that procedurally, for the sake of the nation as a whole? And that's why I want to emphasize that as difficult as it is. It's essential to do this before the election, rather than afterwards. The thing I fear the most is this idea that Congress after the vote could kind of take people's vote away. That to me would be the ultimate crisis, which is why I think we have to figure out the best way to handle this ahead of time.

SMERCONISH: In other words, now final thought we're all familiar with what how happens January 6 after an election and you're saying in the January 6 of 2025, we don't want to have this issue now be argued by the Congress and throw us into a state of chaos.

[09:25:14]

FOLEY: Exactly. That's the key point.

SMERCONISH: Thank you, Professor Foley. It's provocative and I appreciate your time.

FOLEY: Thanks for having me.

SMERCONISH: More social media reaction, Catherine, what do we have that has come in during the course of the program? Trump will be the nominee because of not in spite of the indictments will be the nominee because of not in spite of the indictments. So if Democrats really want to damage his candidacy, they would stop indicting him.

Well, Courtney, I've not recommended that they stop indicting him. I'm -- I'm just trying to point out that the polling data makes pretty darn clear that his hand has been strengthened with -- with each subsequent indictment. And I said this in my opening commentary today. This is based on anecdotal information, but I sense that many Republicans were ready for a choice, you know, we're ready to see all those on the stage come Wednesday night, but they take umbrage at now, the perception that outsiders are trying to take that choice away from them, like, hey, you know, let us decide if we want to leave this guy. But don't you tell me what I'm going to do? That's what I sense is going on borne out by the polling data.

Still to come. An Iraq war veteran and his wife alleged that their application to become foster parents was denied because of their religious views, including their feelings about LGBTQ plus issues, they claim a violation of their First Amendment rights. I'm about to speak to their lawyer.

I want to remind you that I want you to go to smerconish.com this -- this hour and answer this week's poll question. Should prospective adoptive parents be required to pledge a willingness to be affirming of a child who may later identify as LGBTQIA. And the raucous frat comedy Animal House released 45 years ago this month? I'm one of those, always quoting it. But film critic Ty Burr argues that beyond the laughs, it actually became a turning point in America's politics and cultural wars, giving permission among other things to a sense of national selfishness. He'll be here to explain.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: This year we're going to grab the bull by the balls and kick those punks off campus.

UNIDENTIFIED MALE: What do you intend to do sir? Delta is already on probation.

UNIDENTIFIED MALE: They are?

UNIDENTIFIED MALE: Yes, sir.

UNIDENTIFIED MALE: Oh, then as of this moment, they are on double secret probation.

(COMMERCIAL BREAK)

[09:31:44]

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Do you want to dance?

UNIDENTIFIED FEMALE: Huh?

UNIDENTIFIED MALE: Do you want to dance?

UNIDENTIFIED FEMALE: Yes.

(END VIDEO CLIP)

SMERCONISH: That was from National Lampoon's college comedy "Animal House." Hard to believe 45 years since the release in the summer of 1978. Despite a meager budget of $3 million, the film took over American pop culture, pulling in nearly 142 million at the box office. Until recently, I saw it as just a chaotic comedy of my teenage years. That is until this week when I read Ty Burr's opinion piece in the "Washington Post" entitled "I was on campus when Animal House debuted. It changed everything." He argues that the movie was much more than a celebration of fraternity debauchery. And he makes the case that it was a political and cultural milestone.

Ty Burr is the author of the movie recommendation newsletter "Ty Burr's Watch List." In July of 1978 he attended a preview screening of the film as a student at Dartmouth, where he says he saw his classmates inspired by the new principles. The right to say what you wanted, offend whomever you wanted, and grab the rewards you felt were yours.

Ty, thank you so much for being here and writing this piece. So, you attending that screening for the movie just off campus at Dartmouth in Hanover at a small theater. What happened that night?

TY BURR, WRITER/FILM CRITIC, TY BURR'S WATCH LIST: What happened that night was that the place went wild because, you know, it is a hilarious movie. And I want to stress that you could enjoy this movie absolutely as a movie. But I have to point out that one of the screenwriters was in attendance, that was Chris Miller, and he was a Dartmouth alumni who had gone to one of the more notorious fraternities on campus, the one that actually isn't even recognized anymore because they were branding the flesh of new members.

So, nevertheless, the audience went wild. I literally remember him being carried on the shoulders of cheering fraternity guys down frat row at Dartmouth. It was as though all the debauchery and fun was given the OK, had been the cultural OK. There had never been a college comedy that said, yes, we're identifying with the -- quote -- unquote -- "losers."

We love these guys. We love the fun they have. We love their outlook on life. And I definitely connect it. I saw it with my own eyes.

SMERCONISH: Listen, I'm one of those, for better or worse, who can -- you know, seven years of college down the drain, did it matter when the Germans bombed Pearl Harbor. We could go on and on. OK. I know all the lines. I've never -- I've never put it in a political context the way that you did.

I'm going to put something on the screen and read it aloud. You wrote, "By 1978, the progressive liberalism that had sustained the counterculture from before the civil rights era to the fall of Richard M. Nixon had started to feel like oppressive doctrine. Still, if you were young and in college, you had to subscribe to it, didn't you? Animal House said, no, man, you didn't. You didn't have to mean it at all. The movie fed into and articulated a growing frustration with an overbearing political correctness, the fear that you couldn't say what you wanted to without stepping on someone's toes."

[09:35:08]

So, you're here to argue that this was the beginning of what kind of an era?

BURR: I would say to me this -- and, you know, you can put too much weight on it, but the piece is done -- play around the idea is the transition between the '60s and the '80s. And in the piece, I say the '70s should be understood as a period of double-knit and disco and just be put aside. But that it went from -- when even the frat culture sort of have to pay lip service in public to, yes, you know, we're -- we believe in these things, these progressive ideas to -- the movie allowed them to say, no, I don't need to mean that. I can just have fun. I can be -- and do whatever I want to be.

And I will say that -- and this is ironic. It resonated with the more conservative forces on the campus at that time. And you may remember that The Dartmouth Review, that's a -- the first conservative college newspaper, started up two years later and the students who started it were in that audience and have written about being really affected by that movie and wanting to be Bluto.

(CROSSTALK)

SMERCONISH: And, Ty -- Ty, can I say -- can I make this point?

BURR: -- nobody wants to be the Omega.

SMERCONISH: Can I also -- can I also make this point?

BURR: Yes.

SMERCONISH: Those of us who wore togas are now older parents or grandparents. And as you point out, you know, 45 years later the wheel has turned once more. The students who embraced the film's shredding of taboos are now aging parents and grandparents castigated by their progeny for making sexist jokes or using the wrong pronouns. Is there another political lesson in the 2024 cycle that springs from "Animal House"?

BURR: I don't know if I'd go that far yet. But I will say that the wheel turned and that you're having younger voters coming into this election, and they are probably, possibly going to look at this movie and other movies of their ilk, those '80s comedies with a slightly more jaundiced, jaded, unaccepting eye.

They'll still be funny. They'll still find their audience. But the wheel always turns and will also turn back.

SMERCONISH: Yes. Thank you for that. Thank you, Ty. Appreciate your being here.

Checking in on social media reaction now, what do we have?

Smerconish, "Animal House" was OK, not great. Calm down.

Oh, OK. Is my exuberance showing? Hey, do you want to hear one more funny thing about "Animal House"? I pulled the original "Washington Post" review to the movie. Gary Arnold, August 11, 1978, "Animal House emerges as an enjoyable sophomoric farce, too episodic and shallowly derisive to inspire lasting esteem." I think not.

Up ahead, can your religious views disqualify you from becoming a foster parent? One Catholic couple alleges their application was denied after voicing their disapproval for same sex marriage. That leads us to this week's poll question at Smerconish.com.

Should prospective adoptive parents be required to pledge a willingness to be affirming of a child who may later identify as LGBTQIA? We'll do that next.

(COMMERCIAL BREAK)

[09:42:21]

SMERCONISH: A Massachusetts couple alleging their application to become foster parents was denied based on their religious views and stance on the LGBTQ+ community. Michael Burke, an Iraq war veteran, his wife Catherine, a former special education caregiver, always wanted kids. After experiencing the heartbreak of infertility, the couple began the application process to foster children.

A part of the process required getting their opinions on raising an LGBTQ child. As devout Catholics, the couple stands with their church in support of traditional marriage and sexuality. According to the social worker's report, when Burkes were asked how they would feel if a child in their care identified as LGBTQ or struggled with their identity, their gender identity, Catherine Burke responded -- quote-- "Let's take the T out of it" and call gender affirming care chemical castration.

Last week, Michael Burke was asked if he would still love his son if he married a man. Here was his response.

(BEGIN VIDEO CLIP)

MARTHA MACCALLUM, FOX NEWS HOST: Didn't you say in your discussion with them that if you had a son and you learn he was gay you would love him, you know, regardless of -- and you would welcome him and even support him if he wanted to marry another man?

MICHAEL BURKE, FOSTER PARENT APPLICANT: One of the things of our Catholic faith is we love one another as God has loved us. I love every person. Do I agree with it? No. It's hate the sin not the sinner. And I would love that child no matter. Just like my mother loved me whenever I did something wrong.

(END VIDEO CLIP)

SMERCONISH: The Burkes claim their First Amendment rights were violated. They are now suing the state's Department of Children and Families. The lawsuit requests to dismiss their application denial so that they're not barred from fostering or adopting children in the future.

Joining me now is William Haun. He is an attorney for Michael and Catherine Burke. He's senior counsel for the Becket Fund for Religious Liberty. Counsel, thanks so much for being here. You get to answer this week's poll question. Should prospective adoptive parents be required to pledge a willingness to be affirming of a child who may later identify as LGBTQIA?

WILLIAM HAUN, ATTORNEY FOR MICHAEL AND CATHERINE BURKE: I think the answer is no one's First Amendment rights are subjected to a popularity contest. The Supreme Court has made very clear that it is odious to our constitution to say because of your religious beliefs, you don't get to participate in public life. And that's exactly what happened to the Burkes here.

Massachusetts acknowledged they were a loving couple, that they had many strengths as foster parents, that they seem to really understand that, that they would be particularly good with families -- or children who have behavioral health needs. But nevertheless because of their beliefs they were excluded. That's unconstitutional and it's a tragedy given the foster care crisis in Massachusetts.

[09:45:03]

There are children in hospitals, children in office buildings. And Mike and Kitty wanted to open their home but to Massachusetts that was unacceptable.

SMERCONISH: What if we remove -- I know that -- very important to your case is the religious aspect of it and I appreciate that. What if we remove religion? What if it's an atheist or agnostic couple and the facts are otherwise the same? How would that case play out?

HAUN: Yes. That has no relationship here because from the very beginning of the case Massachusetts made clear as the license review team said it was the family's beliefs. And as a -- the person who did the study for DCF said, their faith is not supportive and neither are they.

This is a case of religious discrimination. And the First Amendment gives a very clear answer to that question. And it's been an issue that's come up unfortunately across the country for religious traditions of various forms, Seventh-Day Adventists, other families. It would affect Muslims, Orthodox Jews, Protestants. Massachusetts has essentially said you don't get to participate in public life if you have these beliefs.

SMERCONISH: I acknowledge. I read your complaint. You attached to your complaint the entire file. So, I've read in on this. There are some troubling aspects. Yes, a lot of fine qualities, not the least of which is that your client is an Iraq war veteran.

But you know what the file contains. I'm going to just run through a couple of these. This writer asked about how they'd feel if their child were identified as lesbian, gay, bisexual, queer, or any other sexuality? Kitty shared -- quote -- "there's nothing wrong with it, I'm going to love you the same, but I believe you would need to live a chaste life."

Is that a dealbreaker if the mom says that if the son or daughter is lesbian, gay, bisexual, or whatever, well, they're going to have to be chaste?

HAUN: I think what it shows is that Mike and Kitty wanted to both work with the state and have conversations with their children. This is building a family. This is having a relationship.

And instead of allowing that kind of flexibility to happen, Massachusetts just decided on an iron-clad rule at the beginning, we won't even try to work with you, you're totally excluded from the system. That's both unnecessary and it's unconstitutional.

SMERCONISH: Here's another. The couple expressed that they are not open to gender affirming care and believe that partnership outside of heterosexual relationships is a sin. How should Massachusetts or any other state protect a child against the possibility in the future of intolerance?

HAUN: I think what Mike and Kitty said is that they would be willing to have conversations with their child or with the child about what was going on in their life before they did anything that would be life altering. That's proof that they would be good parents. It's not a reason to categorically forever exclude them from helping children.

SMERCONISH: Here's a social media reaction. Let's respond to it together. I have no idea what it says but it pertains to this case. Put it up on the screen, Catherine.

No. This person answers the question, should adoptive parents have to affirm they will support a child if they change religion, have an abortion, pick a different political party, get cancer? Putting one social issue in the process is what causes the GOP to say woke is driving our policies.

I mean, you and I had this conversation on my SiriusXM radio program. And certain callers said, you know, things change. Whatever the perspective might be of your clients today is not how they'll feel in the future, especially given the pace of perceptional change of same- sex relationships. I'll give you the final word.

HAUN: I think in terms of things changing, the issue here is the discretion that Massachusetts has. It has a lot of flexibility and that flexibility is meant to maximize the number of foster parents and ensure a good fit with kids. But instead of even going down that road, Massachusetts turned that discretion into a weapon against religious beliefs it doesn't like. The First Amendment has a clear answer to that question. No.

SMERCONISH: William Haun, thank you so much for being here.

HAUN: Thank you.

SMERCONISH: Still to come, more of your best and worst social media comments and you'll get the final result of the poll question. By the way, when you go to vote today register for the free daily newsletter, you'll love it, at Smerconish.com.

Should prospective adoptive parents be required to pledge a willingness to be affirming of a child who may later identify as LGBTQIA?

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[09:53:52]

SMERCONISH: All right. There's the result thus far. Whoa. Fifty-fifty. You know what's interesting? When I voted, there were 1,200 votes cast and it was within half a percentage point. And now here we are 23,854 and that held, which I just find remarkable.

It's a hard issue. I mean, to look at the file is to recognize these are good people but, you know, they have issues with LGBTQIA issues. So, you want to be protective of a child in the future. But if you remove religion, I think, it becomes a more clear case. If you leave religion in this file, then you say, oh, well, you can't discriminate against them because of their faith, and that would be right.

Quick social media reaction. Enough bloviating for me. Catherine tells me everybody is angry at me this week. Like every demographic is upset as expressed by social media.

No, is the answer. Listen, if folks love their kids, for real, then they can roll with whatever comes just like bio parents. This is a dumb, provocative question. Maybe we should just make bio parents take a test before they get to keep their babies. Well, Amey, I didn't create it out of whole cloth.

[09:55:00]

It's a real case going on in Massachusetts on an issue that I'd never given consideration too before. But you're absolutely right, this issue emerges every day, you know, in households across the country. But in this situation, from the perspective of the state, what if you could avert a circumstance where parents are unsupportive?

And I'm not saying that these folks would be, because the file is complicated. But if you knew that it was going to -- it was going to be dicey then would you do something different?

Real quick. One more if I've got time and I think that I do.

"Animal House" came out when I was at U.D. -- University of Delaware I presume. Toga parties happened the next weekend.

Mary, it was that quick a phenomenon. Up until now, I've just thought it was, you know, a funny movie that some lines didn't weather over the years so well, and some did. But Ty Burr makes, I think, a convincing argument that there are some political significances to all this and maybe, I'll say, some relevance to the cycle that we're now beginning.

All right. Thank you for watching. Hit Smerconish.com. See you next week.

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