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Smerconish

Elections Have Consequences; SCOTUS: Web Designer Can Refuse Same-Sex Wedding Announcement; Tom Stuker Purchased Lifetime United Airlines Pass In 1990; Judge Rules Transgender Care Ban Unconstitutional. Aired 9-10a ET

Aired July 01, 2023 - 09:00   ET

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

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[09:00:30]

MICHAEL SMERCONISH, CNN ANCHOR: Elections have consequences, especially 2016. I'm Michael Smerconish in Philadelphia. The Supreme Court 1/3 comprised by appointees of former President Donald Trump just ended a most consequential term. SCOTUS just put its imprimatur on voting rights, affirmative action, student loans and adoption. This on top of last year's rulings concerning abortion, guns, religion, and climate change.

Yesterday, the court released a much-anticipated opinion concerning speech and gay rights. At issue, a Colorado business seeking permission not to work for same sex wedding couples, only this time it wasn't the baker. That case was decided in 2018 when Jack Phillips refused to bake a wedding cake for a gay couple. Back then the court narrowly decided for the baker but didn't determine whether a business owner speech rights can justify refusing service to gay couples.

Well, five miles from the Colorado baker is a graphic artist named Lorie Smith, who will join me momentarily. She said she didn't want to create any same sex wedding message at odds with her religious beliefs. She brought up pre-enforcement action, meaning she'd never received a request to design a same sex couples' site nor had she turned anyone down. Smith won. A majority of the court saw Colorado's public accommodation laws and unconstitutional attempt by the state to compel her speech. The minority cast the outcome as the first time the court permitted a commercial business to refuse service to a protected class.

Justice Neil Gorsuch wrote the majority opinion in which he stated this, "All manner of speech from pictures, films, paintings, drawings and engravings to oral utterance and the printed word qualify for the First Amendment protections. No less can hold true when it comes to speech, like Ms. Smith's conveyed over the internet."

Lawyers and law schools, we love hypotheticals, and both sides to this case came well-armed. Justice Gorsuch, his majority warned that if the state were successful, the government could similarly require an unwilling Muslim movie director to make a film with a Zionist message or an atheist muralist to accept a commission celebrating evangelical zeal, so long as they would make films or murals for other members of the public with different messages or that the government could enforce a male website designer married to another man to design websites for an organization that advocates against same sex marriage.

Justice Sotomayor's a minority opinion responded in kind. She raised the example of a professional photographer who's generally free to choose her subjects. She can make a living taking photos of flowers or celebrities, the state does not regulate that choice. But she said if the photographer opens a portrait photography business to the public, the business may not then deny to any person because of race, sex, national origin, or other protected characteristic, the full and equal enjoyment of whatever services the business chooses to offer. And said Sotomayor, if the business offers corporate headshots, it may not then deny those services to women because the owner believes a woman's places in the home. Nor Sotomayor argued can website designer refused to create a wedding website for an interracial couple based on the opinion that the Almighty God did not intend for the racist to mix.

How about this one, could a stationer refuse to sell a birth announcement for a disabled couple because she opposes they're having a child? Sotomayor wondered aloud. And what about a large retail store that wishes to reserve its family portrait services for traditional families? Where would the slippery slope end?

Yesterday President Biden weighed in calling the decision disappointing and said that he feared the exclusion of gays and other minorities by businesses? Joining us now are the successful plaintiff in the website ruling Lorie Smith and her attorney Kristen Waggoner. Kristen Waggoner personally has argued three cases before the Supreme Court. She's the CEO and President of Alliance Defending Freedom of faith based legal organization that has won 15 cases at SCOTUS and assisted in the legal team that overturned Roe vs. Wade.

Lorie, thank you for being here. Hypothetical for you, if a gay man who's a realtor asked you to design a website for his business, are you taking that job?

LORIE SMITH, WEB DESIGNER/PLAINTIFF IN SUPREME COURT CASE: Of course. And it's not a hypothetical I have clients who identify as LGBT. I work with clients from all walks of life. I cannot create every message requested of me.

[09:05:07]

SMERCONISH: You do a great job, this is hypothetical number two, and then I'll get off the hypotheticals, at least for now, you do a great job for a man and woman getting married, a same sex couple see the website you create, and they say, we want exactly that, just change the pictures and change the date, don't do anything else, give us what you gave them. How about that?

SMITH: I don't specialize in that type of speech. Everything I create is unique and one of a kind. Again, I'm always looking at the message that I'm being asked to create.

What I think is really important to emphasize here is that for the last seven years, the state of Colorado has been silencing and coercing my speech and forcing me to create a message I don't wish to create. Nobody should be put in that position. And the court's decision yesterday protect speech, not just for me, for the LGBT website designer and every other artists out there. Nobody should be punished by the government for speaking consistent with their beliefs.

SMERCONISH: Counselor, I see you shaking your head. Let me ask you a question. I read the opinion last night, by the way, it's great reading both the majority and the minority view, and I recommend the dissenting view. And I recommend that Americans who are interested in this take the time to do so, it's written mostly in plain speak.

I thought before I read it, that this was going to be largely predicated on Lorie's religious beliefs, and that is not my take away, instead, it's about her speech. But it makes me wonder, OK, what about someone who's just uncomfortable with whatever might be the client in front of them having nothing to do with faith? Doesn't that open the door for animus to be a determinant?

KRISTEN WAGGONER, ATTORNEY FOR LORIE SMITH: The court's decision does not do that at all, it reaffirmed a time honored principle found in our Constitution, which is that the First Amendment follows a golden rule, if we want to protect speech for ourselves, then we need to protect it for others, even those we disagree with. Whether someone feels uncomfortable, they certainly can't deny service because they feel uncomfortable. The court's ruling says that nondiscrimination laws continue to apply to ensure that people can't be denied services or goods because of a protected characteristic. But it also says that no matter who you are, the government can't force you to say something that you don't believe. And that's a win for everyone.

SMERCONISH: Right, you make it sound as if these are black and white determinations, though. I think a lot of this is in the gray area. What exactly is speech? I don't know why so much of this litigation is in a wedding context, but OK, I'll roll with it. So I guess the baker is speaking, I guess the website designer, your client is speaking, presumably the florist is speaking, the photographer.

What about the stagehand, what about the wedding singer, you know, what about all those ancillary businesses that go into, are they all offering speech? Or are they just there doing a job like they would do for any other couple?

WAGGONER: If they're doing a job and there's not speech involved, then they -- they're -- the nondiscrimination principles apply and the First Amendment does not in the free speech context. And so, I think you're overcomplicating it. As you open the court's decision, the majority decision by Justice Gorsuch is clear, there are clear tests in the law as to when speech is involved. We know when speech is involved. And here, we have the written printed word, so there's no question that speech is involved.

In terms of Justice Sotomayor's dissent, as the majority said she's litigating a case that wasn't even before the court and an entirely different facts. So, again, like you said, Americans should read the decision and decide for themselves. SMERCONISH: OK. I'm -- in my hypothetical counselor, I'm an atheist, and I'm in one of these ancillary businesses, and when couples get together in a non-religious environment or ceremony, I'm going to provide my services. But wait a minute, this is a religious wedding, I don't want a part of that, is that OK?

WAGGONER: Well, I'm not sure what your atheist is doing. And so what matters is are they being asked --

SMERCONISH: I'm a florist, I'm a photographer, I'm a web designer or I'm a baker, but I'm an atheist. And I'm only going to provide these services for fellow atheists, even though I hold myself out to the public.

WAGGONER: It's about what the speeches it's being requested. Lorie has always made distinctions based on what the message is that she's being asked to give voice to. And that's a critical distinction that the court reaffirmed. The test has always been whether the speaker's message is affected by what the government wants them to say. And that's the test that will continue to apply.

The court didn't create new law. They just applied it in a cultural moment where some disagree with Lorie's message. And it's important that we stick to protecting freedom, because political and cultural winds shift. And if the government can compel Lorie, it can compel the LGBT website designer as well. We all need to remember that.

SMERCONISH: This is a law school dream, this case.

[09:10:00]

Lorie, a final one for you, think of the pharmacist called upon to fill a prescription for birth control who has a religious objection to doing so, I would say, hey, you chose to be a pharmacist, and if you have trouble providing this service, maybe this is not a gig for you. What about someone who similarly says, if you want to be a web designer, you got to serve everybody and your religion can't come into it, you get the final word.

SMITH: My final word is this, I create speech for a living. When speech is involved, speech should be protected. This protects not just me, the LGBT website designer, the Jewish calligrapher, the Democrat speechwriter, the prolife photographer, we all benefit from the court's ruling yesterday.

SMERCONISH: To be continued. Thank you both so much for being here.

SMITH: Thank you.

WAGGONER: Thank you.

SMERCONISH: I'm inspired for this week's poll question to ask you the following. Here it is, go to smerconish.com and tell me. And maybe it's a loaded question, because of the subject I just discussed and all the news of the week, but I want to hear what you think, which is having the greatest impact on American lives? President Biden, is it the Congress, is it the Supreme Court?

By the way, when you go to smerconish.com, you'll see a new feature there where you can live chat during the program. We'll be pulling some of your comments for me to respond to during the course. Yes, there it is. It highlighted right at the top of the page.

So, hit me up on social media. This comes I think, from YouTube. What do we have Katherine (ph)? I could have continued that segment forever. Business owners who want to make money, what is wrong with that woman? How much business will she lose because of her bigotry?

Well, you say bigotry and she says -- I mean, you hear what I think, I think it's obvious, I so welcomed those guests, I love this conversation. But like if you sign up for a particular job, then, you know, you got to do the job. And I -- when public accommodation butts up against her speech right, I don't think it's an easy call. I'll say that.

Up ahead, an IRS whistleblower claims that the agency was thwarted from fully investigating Hunter Biden and Joe, A.G. Merrick Garland says he didn't interfere but the U.S. Attorney in charge of the case hasn't responded since the claims were made public. Will we ever get a definitive answer?

Plus in 1990, Tom Stuker bought a lifetime pass on United Airlines. And now he has flown more than 23 million miles. Well, he's landed at CNN for a layover to tell us what it's like to be the world's most frequent flyer.

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[09:16:24]

SMERCONISH: Imagine if you could hop on an airplane anywhere in the world at a moment's notice without ever thinking about the cost. Well, that's the life that my next guest lives. Tom Stuker is a sales and management consultant mostly working in the auto industry, in 1990, United Airlines was offering its customers a lifetime flying pass for unlimited travel. Stuker jumped at the chance to invest in a companion pass. That means that for the then hefty price of $510,000, he could fly with a partner first class on any future United Airlines Flight.

He's now 69. He's already traveled more than 23 million miles. For Tom, there's no such thing is a once in a lifetime type of trip. He wants brought a friend who loves Chinese food to Hong Kong for a meal and flew to Australia for a three hour 70th birthday party. He and his wife have taken over 100 honeymoons, but Stuker isn't just leaving with memories, he's been racking up airline points and miles along the way cashing in on high end hotel suites, gift cards, cruises and gourmet meals.

He wants cashed $50,000 worth of Walmart gift cards in a single day. He even earned a guest appearance on a Seinfeld episode, all on United's dime. With perks like that it's no surprise that the airline no longer offers such extravagant opportunity, and yet the company adores him. The airline has even put his name on two of its airplanes. Tom Stuker joins me now. Tom, thank you so much for being here. Three quick questions at the outset. What's the best --

TOM STUKER, LIFETIME FLYER FOR UNITED AIRLINES: You got it.

SMERCONISH: -- seat on the plane?

STUKER: My favorite seat is the bulkhead. Domestically I like 1B and internationally I like either, especially on the Polaris aircraft which is so great, is the one Apple or one Lima, those are the side single seats by the window. It's easy in, easy out, you're close to the bathroom and close to the bar.

SMERCONISH: What's the best airport in the world?

STUKER: Anywhere? OK, this one's a little different. My favorite airports, there's a lot, there's great things in every airport, my favorite airports are the United Hubs. And that's just me personally, because that's where my United family is. These people are family to me, and I get to see my family members and all the hubs and these are my best friends.

So, spending time with people I know at the airports is more important. For other people they might like -- other people might like Hong Kong or Amsterdam or Singapore for how fabulous those airports are.

SMERCONISH: OK. Number three, best airline meal if there is such a thing.

STUKER: This is going to sound really -- I like a good steak and United serve some nice ones. But my favorite meal, and they don't have it anymore and I miss it so much, is they used to have lobster mac and cheese going back and forth to Australia. That was my favorite with the garlic wave, it was so good.

SMERCONISH: When you enter the plane, when you walk on, like I do a lot of flying, nothing like you, believe me, I don't think I've ever recognized a flight attendant and thought to myself, oh, I know her or I know him from a prior flight. When you get on board, do they all know you?

STUKER: Not all of them but especially an international trips. I know an off -- I would say probably 50 percent of the flight attendants I've flown with and I know, and like I said the best part, the best part of flying for me is the interaction with the crews. I love the crews because I've known them. Again, they're my family and I've known them forever and they're so great.

[09:20:07]

And you know what whether you've never flown before, if you treat the flight attendants and crews nice, they'll treat you good to. Just show respect to each other and your seatmates.

SMERCONISH: Yes. Well, that's a good rule for life. OK, you're in first class 23 million miles worth, I got to believe a lot of celebrities, a lot of well-known people, give me one quick celebrity encounter.

STUKER: Bill Murray in the first class lounge, Chicago. My brother who's a great Bill Murray fan. I even told Bill, I think my brother does a better Bill Murray than he does.

My brothers had a great -- a really tough life with 28 back operations. And Bill says, well, get him on the phone. Bill called, my brother didn't answer, left a two minute message. That was just, just so beautiful. The greatest guy I've ever met Bill Murray as a celebrity.

SMERCONISH: Back in 1990, it was a lot of money. I mean, it's a lot of money today, but you knew, like you knew, hey, this is something I got to do, and I'm going to get the companion pass as well, even if it cost me five handy (ph)?

STUKER: And it did. And it was not only the best investment for me, but a lot of people think it was a bad investment for United, not really back. OK, maybe not for me personally, but when they sold these passes, all the airlines had a cash crunch. And what they did was brilliant. What they did is say, let's get these passes sold, and instead of borrow money and pay an interest, we'll just pair it with empty seats later on.

I mean, I love my United, it's a great, I love the direction to go and how they're going green to keep the atmosphere clean for everybody. So, I love flying, I love flying and I love the people I meet on the planes and on the ground. That's the best part.

SMERCONISH: Final question check a bag yes or no?

STUKER: No, if you could get away with it. I mean, obviously, I'm going on a two week cruise in August, so I got to check a bag. On business trips where I have to wear suits and an extra, yes, check the bag when you have to, but avoided at all cost. I go to Hawaii for 10 days without a check bag, they got laundromats. And if I have to buy some clothes, and then just donate them at the end because I don't have room in my bag. But I like to save 30 minutes at the carousel.

SMERCONISH: Love it. Thank you so much. And by the way, second weekend in August, I'm open. I got nothing on the calendar.

STUKER: Well, I think my count is pretty full. I mean, I'll be up in those friendly skies just about the rest of the year.

SMERCONISH: Thank you, Tom. Appreciate it.

STUKER: All right. You bet. Thanks for having me.

SMERCONISH: You bet.

Social media, YouTube, what do we have? Can you imagine, at the time I'll bet his friends like, you're crazy, and now look. Dave says I flew 1.5 million miles in my career and was worn out and didn't want to get on a plane for two years after I retired. I can't imagine flying 23.

Listen to this in 2019, he took 373 trips in 365 days 1.46 million miles, and guess what the market value for that one year of flying was, $2.44 million, 2.44 mil. OK, so like he got a bargain back in 1990.

Please make sure you're going to smerconish.com and voting on today's poll question. I wanted you to think about this, yes, I'm making a point. I am making a point by asking this question because I know how it's going to end. Which is having the greatest impact on American lives, President Biden, Congress or the Supreme Court?

Up ahead, two IRS whistleblowers claim Hunter Biden deserved more serious charges that he pled guilty to but that the probe was hamstrung, hamstrung to protect the president. Hunter's lawyer says the whistleblowers are disgruntled agents with, quote, "bias and an axe to grind. So, which is it?

Plus, this year has seen a record shattering number of anti-LGBTQ laws and 20 states have now passed bans on gender affirming health care access for transgender children and teenagers. A federal judge after a trial in Arkansas struck down that state's law as unconstitutional. I'm going to talk to a doctor who testified in the case and has been treating trans patients for 30 years.

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[09:28:42]

SMERCONISH: Can all three be telling you the truth? Hunter Biden's prosecution and plea deal on tax evasion remains a hot button issues 2024 as election heats up, partly because it's unclear whether the IRS was thwarted from fully investigating the Biden's including Joe. One of those involved in the case say, well, here's exhibit A, IRS whistleblower Gary Shapley, who oversaw the agency's role in the investigation is claiming that the IRS investigators recommended far more serious charges and that the U.S. Attorney in Delaware overseeing the probe, David Weiss, was blocked from bringing charges in other states. And Shapley says his criticism of the Justice Department's handling of the case led to him being denied a promotion. Here's what he told Bret Baier on Fox News.

(BEGIN VIDEO CLIP)

GARY SHAPLEY, IRS WHISTLEBLOWER: We were conducting investigation of Hunter Biden and we were trying to follow the normal process, we were trying to get to the bottom of it. And ultimately, you know, if it was going to lead to another individual, you know, we should follow that to determine what's actually happening. But you know, there were definitely hindrances that I've never seen before in my 14 years concerning this investigation that didn't allow us to follow through an investigation of any other individual to include President Biden.

(END VIDEO CLIP)

SMERCONISH: But how does that square with exhibit B? When asked about the case A.G. Merrick Garland said this.

[09:30:00]

(BEGIN VIDEO CLIP)

MERRICK GARLAND, U.S. ATTORNEY GENERAL: Mr. Weiss, who was appointed by President Trump as the U.S. attorney in Delaware and assigned this matter during the previous administration, would be permitted to continue his investigation and to make a decision to prosecute any way in which he wanted to and in any district in which he wanted to.

Mr. Weiss has since sent a letter to the House Judiciary Committee confirming that he had that authority. I don't know how it would be possible for anybody to block him from bringing a prosecution given that he has this authority.

(END VIDEO CLIP)

SMERCONISH: Which leads us to Exhibit C, the letter that Garland referenced. U.S. Attorney Weiss wrote this to House Judiciary Committee chair Jim Jordan back on June 7, and it included this, "I have been granted ultimate authority over this matter, including responsibility for deciding where, when, and whether to file charges and for making decisions necessary to preserve the integrity of the prosecution consistent with federal law, the Principles of Federal Prosecution and departmental regulations."

But according to Shapley's testimony in mid-2022 Weiss reached out to the top federal prosecutor in Washington to ask his office to pursue charges and was rebuffed, as was a similar request to prosecutors in the central district of California. And much hubbub has been made over the reporting from "The New York Times" piece -- quote -- "A second former IRS official, who has not been identified, told House Republicans that same story. That episode was confirmed independently to The New York Times by a person with knowledge of the situation."

On Friday, Hunter Biden's lawyer, Abbe Lowell, pushed back in a letter to Jason Smith, the GOP chair of the House Ways and Means Committee, who released the whistleblower transcripts. Lowell called them -- quote -- "disgruntled agents" with "a bias and an axe to grind." And accusing Republican lawmakers of releasing the transcripts as -- quote -- "An obvious ploy to feed the misinformation campaign to harm our client, Hunter Biden, as a vehicle to attack his father."

So, what actually happened here? Joining me now to discuss is Glenn Thrush, Washington correspondent for "The New York Times," where he covers the Department of Justice. Glenn, thank you for being here. It's your "New York Times" reporting that I referenced a moment ago. Can all of these competing accounts somehow be squared?

GLENN THRUSH, WASHINGTON CORRESPONDENT, THE NEW YORK TIMES/COVERS DEPARTMENT OF JUSTICE: Who knows? But I think one of the things that is becoming increasingly clear is Merrick Garland did not do a very good job of explaining the process to us when he addressed us on Friday. This is a much more nuanced process than Weiss having completely unlimited authority to move unilaterally. The process would entail, say he goes to D.C. and California and says to them, let's partner on prosecutions involving violations of the tax code. And what we're really talking about here, according to the material that's out there, is the 2014 and 2015 tax years seems to be ones they were targeting, right?

They then saying, nah, we don't like it, or for whatever reasons that they choose to decline to partner he can then go appeal, essentially, to Merrick Garland and say, I want to invoke a section of the law called the special -- not special counsel, special attorney, whereby you overrule these guys and give full authority. Weiss says he never did that. Garland says he never did that.

So, part of this is hinting on how incomplete an explanation Garland provided to us when we asked him that question.

SMERCONISH: OK. So, in my hand I have got my own marked-up version of the print edition of "The New York Times" which contains infamous paragraph number 21. Quote -- "That episode was confirmed independently to The New York Times by a person with knowledge of the situation." What exactly did you confirm?

THRUSH: We confirmed -- I am not going to go much beyond what we wrote. But I will tell you that the general sense that we have is that he approached the prosecutor in southern California with a request to partner and was denied. That is -- that is the alpha to omega of what we know and what we have reported thus far. We are continuing to report --

SMERCONISH: OK. That seems to support -- that seems to support what -- it seems to support what Shapley has said, which is that at this meeting on October 7, 2022, Weiss comes in and says, look, I am not the decision maker here.

THRUSH: It doesn't support that at all. It supports this one fairly narrow aspect of the story. Look, the main thing with Shapley is -- what we are seeing -- and, obviously, there is new information that has been presented in this testimony that has changed the narrative of the story, right? We are now talking about the D.C. and California charging decisions.

[09:35:01]

We hadn't been talking about that before. So, let's just affirm that he has placed that into the record. But a lot of these other characterizations, Michael, have not been challenged. We are not seeing him cross-examined by minority counsel in this testimony and he has yet to say that he will appear under oath before the committee as Merrick Garland has.

So, the suggestion -- the question here is -- there are two sets of questions here, right? What's the fact said, and which is what we are attempting to determine, and what are the suggestions that Shapley is making and what's the -- what are the gaps and consonances between those two accounts? SMERCONISH: Glenn, the person who could clear this up more than anyone else it seems to me is U.S. attorney Weiss. First of all, do you agree with is that? And, secondly, do you expect he will soon speak?

THRUSH: I do. I do. I think Weiss -- from our reporting, Weiss is particularly frustrated with Shapley's characterization of himself as a whistleblower. He doesn't think there has been any retaliation against Shapley. And what we're sort of hearing from scuttlebutt inside the department is that Weiss is frustrated by the version of accounts that are going out there.

Now, that said, there was one line in the announcement of the Hunter Biden plea deal that sort of freezes everything. He said that this is -- quote -- unquote -- "an ongoing investigation" -- end quote, which took a lot of the people by surprise. But what it does is it means that he, Weiss, cannot be dragged before any congressional committee and forced to answer these questions under oath while this is going on.

SMERCONISH: I know I'm dreaming, but I want to see, you know, Shapley, Weiss and Garland, you know, all like this and clearing this up once and for all. Thank you so much, Glenn Thrush. We will continue to read your reporting on this.

THRUSH: Great talking to you.

SMERCONISH: More social media reaction. I think this comes from the live Web site chat that we just initiated which had so much traffic that it crashed. Hopefully, it's coming back.

Big fan, but where were you in the beginning of the Hunter story? You discounted it. But now that other media has acknowledged you're on the program.

No, that's -- Kelly, that's not fair at all. And those who listen to me in my day job on SiriusXM know that from the get-go I talked about it extensively, didn't believe that the way the story was squelched from the "New York Post" and in social media should have been the case. It may have been the 11th hour of the campaign but I thought it warranted then a full airing and conversation.

So, there you go. And now you can say, oh, he loves Trump. But I am also the guy who said that at its core it's an addiction story. Don't think that it's a corruption story. Hunter's got issues. I don't see the evidence that Joe does. But it's an addiction story. I would love to talk more about it. Believe me.

Why don't you listen to me on radio? I get three hours a day.

I want to remind you answer this week's poll question at Smerconish.com which is asking, which is having the greatest impact on American lives? President Biden, the Congress, or the Supreme Court?

Still to come, a judge in Arkansas has ruled unconstitutional a state law banning transgender care and surgery for minors. I am going to ask a doctor who is an expert witness for the plaintiffs about the science of trans health care.

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[09:42:18]

SMERCONISH: What's the future of anti-trans legislation in America? Friday, a federal lawsuit was filed in Georgia to stop a law that was supposed to go in effect today, a ban on sex reassignment surgeries and hormone replacement therapies for minors. It's one of 20 state legislatures that have passed some kind of restriction on medical care for transgender people.

This week in North Carolina the legislature sent the governor a bill that bans doctors in the state from providing gender-affirming care to minors even if there is parental content. And then Louisiana lawmakers recently advanced legislation that would ban hormone treatments, puberty blockers and surgeries for young people.

But before such anti-trans medical restrictions get tested in everyday life, they are running into legal roadblocks. This week federal judges in Kentucky and Tennessee temporarily blocked similar laws in those states. And judges have also temporarily blocked Alabama and Indiana's versions. But foremost is Arkansas where a federal judge after an eight-day trial struck down the state's Save Adolescents from Experimentation, or SAFE Act, banning gender transition care for minors. The judge said it was unconstitutional.

It was the first ruling to block such a ban for an entire state. In his 80-page decision, Judge James Moody Jr. said the law both discriminated against transgender people and violated the constitutional rights of doctors. He wrote -- quote -- "Rather than protecting children or safeguarding medical ethics, the evidence showed that the prohibited medical care improves the mental health and well-being of patients and that, by prohibiting it, the state undermined the interests it claims to be advancing."

He added, "There is nothing unique about the risks of gender-affirming medical care for adolescents that warrants taking this medical decision out of the hands of adolescent patients, their parents and their doctors." He also dismissed most of the state's expert witnesses as unqualified. Saying their opinions were -- quote -- "grounded in ideology rather than science."

Joining me now is Dr. Dan Karasic who was a plaintiffs expert witness in the Arkansas case as well as one in Florida. He is professor emeritus of psychiatry at the University of California San Francisco. He has been providing care for trans people for more than 30 years.

Dr. Karasic, I read the opinion. The judge made a number of fact findings largely based on your testimony. I want to run through four of them quickly. Put up number one on the screen, "Gender identity is not something that an individual can control or voluntarily change." Or, Dr. Karasic, as I would say, you can't pray it away, correct?

DR. DAN KARASIC, PROFESSOR EMERITUS OF PSYCHIATRY, UC SAN FRANCISCO: Yes. Gender identity is a deeply felt sense of being male, female or another gender.

[09:45:04]

It's not something where someone can just decide one day that they are not going to be transgender.

SMERCONISH: Number two. "The lack of alignment between one's gender identity and their sex assigned at birth, gender incongruence, can cause significant distress. The medical term for this distress is gender dysphoria." The point I take away is it's a recognized medical condition, the sort of thing that you find in the DSM. True?

KARASIC: Yes. It's a -- gender dysphoria is a diagnosis in the DSM-5.

SMERCONISH: Number three. "Gender dysphoria is a serious condition that, if left untreated, can result in other psychological conditions, including depression, anxiety, self-harm, suicidality, and impairment in functioning." My take away, doing nothing is not an option. You would say what?

KARASIC: Yes, that's my experience as well. You know, I have been working with trans youth for decades now, and I have seen the tremendous benefit that youth get from gender-affirming care for those who need it, and those who are -- who need it but can't access it often could have great distress as a result.

SMERCONISH: The fourth finding of fact that I pulled out of the opinion. Based on your testimony, "It is widely recognized in the medical and mental health fields that, for many people with gender dysphoria, the clinically significant distress caused by the condition can be relieved only by living in accordance with their gender identity, which is referred to as gender transition. Meaning, relief comes when you live your identity. Is that fair?

KARASIC: Yes, I think that's fair as well. For those people who have for instance in gender dysphoria and are having distress and impairment as a result, for many of those people transitioning is necessary to provide relief from that distress.

SMERCONISH: A concern that, I think, some parents have, and some of the proponents of the bills that I just described, is that social influence is going to be outcome determinative. So, to you as a practitioner, how do you weed out social influence, peer pressure, this is just a fad type of thing?

KARASIC: So, we make a diagnosis of gender dysphoria which includes six months of clinically significant distress or social or occupational impairment. So, it's not just that someone learns that there are transgender or non-binary people in society and is, you know, contemplating that as an identity. It's that they are having distress about the difference between their gender identity and their sex assigned at birth. That's going on for months or years and is really impairing their lives.

SMERCONISH: How often in your practice, I'm limited on time, so a short answer would be appreciated. How often in your practice for decades, thousands of trans patients, have you encountered regret?

KARASIC: The regret -- regret is rare. And when I have -- when I have encountered it, it's -- people sometimes have regret about losing their job, losing their family, other aspects of societal discrimination that they weren't prepared for. But I don't see regret of people make a binary transition and then, you know, regret doing so.

SMERCONISH: Thank you, Dr. Karasic. Thanks for allowing me to quickly run through as much of the factual predicate as I could get to.

KARASIC: Thank you.

SMERCONISH: Checking in on your social media comments. What do we have?

You reported on the mental health crisis in American youth. Yes, I have. I've heard a psychologist say before coming out trans, youth often suffer depression. Is it possible when an authority figure suggests that depression is due to gender dysphoria, youth are suddenly trans?

Kyle, I am not an expert and I don't think I understand your question. So, I'm going to pivot and say, read the Arkansas opinion. An eight- day trial. All this back and forth. It's hard to separate fact and fiction, right?

An eight-day trial, federal judge, listen to both sides made factual findings. And I'll tell you what was most stunning to me having invested the time to read it, the family evidence. The parents and the kids who testified, typical fact pattern. It's been going on for years.

Young man, young woman realizes when they are, you know, in third grade, hey, something's not right. Five years later they write a letter -- because they are afraid of having the conversation, they write a letter to their parent and they say, like, here is the deal.

[09:50:06]

And the experts all cited in the case say, it's not something you get talked into. It's not like your kid is going to go to school and all of the sudden tomorrow and come home and have a new message for you because it's like the yo-yo or the pet rock. That's not happening. I don't know why I'm so fired up about this. But read that opinion too.

Still to come, more of your best and worst social media comments and we'll give you the final result of the poll question from Smerconish.com. Which is having -- oh, come on. You know the answer to this. Which is having the greatest impact on American lives? Is it President Biden? Is it the Congress, Kevin McCarthy, and Chuck Schumer? Or is it the Supreme Court?

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[09:55:08] SMERCONISH: So, there's the answer to this week's poll question at Smerconish.com. Which is having the greatest impact on American lives? Thirty-two thousand plus voted and 78 percent have the correct answer. I knew that was the way that it was going to go but I wanted to do it nonetheless just to drive home the point.

Like, every four years I find myself here on CNN or on SiriusXM saying, you know, when you go out and vote think about the consequence of presidents picking the entire federal judiciary, not just the Supreme Court when there is a vacancy but much more law gets made frankly at the appellate level. So, maybe next year will be the year people will keep it in mind.

Quickly, Catherine. I know we're about to run out of time. Show me one social media reaction.

I think you are charging for it -- I think if you are charging for it, it is not a free speech issue. Oh, right, says Bob in reference to -- look, it is very hard to regulate these matters. What is speech? If I'm a magician, entertaining at a party, am I delivering speech like a florist or a baker?

To be continued, have a happy fourth.

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