We will talk about this tomorrow morning on washington journal. For next program will feature a reporter from cq roll call. He will talk about the agenda in congress, including actions addressing the patriot act. Also, a look at recent moves by president s to limit the pensions of ex president s. James thurber is our guest. We will also talk with Michael Greenberger at the university of Maryland Center for health and homeland security. He will give us an update about the cost of federal disaster relief. We will take your calls, as always, and look for your comments on facebook and twitter. Washington journal is live every day at 7 00 a. M. Eastern time here on cspan. Coming up, a discussion on religious liberty with two attorneys arguing cases before the u. S. Supreme court. They were part of a recent event hosted by the National Constitution center. This is just under an hour. The First Amendment States Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof. These words dont signal the and the but rather the beginning of a spirited debate about the proper relationship between religion and the american state. In the early years of the United States, some interpretive the First Amendment to Mean Congress couldnt establish an official religion, but cities and states could. By contrast, Thomas Jefferson described the First Amendment as erecting a wall of separation between church and state. In everson against the board of education, the Supreme Court quoted jeffersons words are urging that this wall must be high and impregnable. In lemon against kurtzman, the court recognized that some relationship between government and religious organizations is inevitable, adding that the line of separation, far from being a wall, is a blurred, indistinct and in variable barrier, depending on all the circumstances of a particular relationship. The first president , george washington, articulated an additional approach in his famed letter to the Touro Synagogue which has been cited as the basis for the concept for religious pluralism, a definition that is more inclusive and perhaps more appropriate in todays United States than the venerable term tolerance. Washington said, it is now no more the toleration is spoken of as if it were the indulgence of one class of people that enjoy the the exercise of their natural rights. The government of the United States, which gives to bigotry no sanction, and to persecution no assistance, requires that only they who live under its protection should demean themselves as good citizens and giving it on all occasions their effectual support. Our speakers today have dedicated their careers to considering issues of the appropriate interaction between religious liberty and our u. S. Laws. Greg liver and Christina Arriaga , council on key cases in the u. S. Supreme court. Michael garson is one of the nations most thoughtful public intellectuals, writing about the intersection of religious belief and politics. Greg liver is with the americans united for separation of church and state, and before that, the nations number one law firm. Christina area go is with the becket fund and has been the council and holly lobby against burwell and a number of other cases. She tells me she has quite an eclectic collection of pets at home. Michael curse and is a columnist with the Washington Post and works with the one foundation on alleviation of disease and poverty globally. There are two categories of cases we are going to talk about today. The first are the more traditional types of cases in a religious field. The accommodation cases, and they often involve minority religion. There is another category of cases, which are very much in the news, which is what i would call religious accommodation 2. 0. Those include cases like the holly lobby against burwell case and the cases that are now growing out of the state writ up. Since that is in the news, that is very much on everybodys mind. Since we have counsel on both sides of the case with us here today, we will ask them to start off by telling us about what has happened in this area since hobby lobby against burwell. I will start off with christina. Christina you may wonder why my hair is messy. Greg and i already got at it. I was specifically asked to talk about areas of agreement. Im working hard. Im sure you can hear my accent. No, i have not been drinking. I am cubanamerican. I feel very passionate about these issues. One area of disagreement that we have is the hobby lobby case. As you may have heard, americans united mischaracterized it as crazy evangelicals denying health care to women. That wasnt actually the case. Im kidding, greg. You never said crazy. Greg she is paraphrasing. Christina the hobby lobby family are an evangelical family from oklahoma city. He started their business in a garage with a 600 loan. They paid their kids seven cents each. As devout christians, when they open their stores they eventually open stores in 26 states. They close on sundays. Their trucks only take merchandise into stores. They dont allow trucks to bring alcohol. They have no loot cards. They provide this very generous Generous Health care benefit to their employees. They pay for every medication, every drug, everything the Affordable Care act required but when the health and Human Services mandate was enacted they had absolutely no objection to 16 out of the 20 drugs that the government mandated. They only objected to four. These four drugs were drugs the government itself conceded may prevent implantation. That was the Science Behind this. The government said, it implemented it prevented implantation. They covered 16. They covered everything else. They had great health benefits. Because of their values, they paid more than twice the minimum wage for their employees. They found themselves painted into a corner by the government. The government, while forcing the government the owners of hobby lobby to provide these drugs, exempted millions of americans from having to comply with this mandate that they consider so vital. The case became politicized. You may have heard about it. Indeed, when the government went before the Supreme Court, the Supreme Court decided their case was very weak. Their arguments were not strong enough, and we won that case. In that case, the government said that closely held corporations have the right to religious liberty. Since there was a big hysteria that health care would and, women would die, none of that has happened. It was all very politicized. Since then, any Court Decision that has come down has largely benefited individuals in prison or individuals who want to exercise their look their right to religious liberty. Does that answer your question . Greg probably has a slightly different version of the facts. Greg she mentioned Thomas Jefferson. Its his birthday today. Its an appropriate day for us to be having this discussion. Im sure he is proud wherever he is. We are not going to ask you to resolve that. Greg let me take a step back before we get into the weeds of the harvey levin case. Hobby lobby, although it is often portrayed as a case brought under the First Amendment, it was actually brought under a statute, the religious freedom restoration act. That was enacted in 1993, and one of the great political coup by ya moments. One of the great kumbaya moments. People came together and cosponsored it. President clinton talked about the proverbial divine intervention ringing all of the to bring all of these people together. The premise of the freedom of restoration act is there are some cases in which, accommodations should be made in peoples religious beliefs. There are some cases where greater exemption should be provided. For instance, muslims must have beards. Oer the extent that requirements of autopsies and that violate someones beliefs. What has happened in cases like hobby lobby and places like indiana and arkansas, the religious restoration act has been a weaponize as a tool for some people to impose the religious beliefs on others and deprive third parties of the rights. I think that was something that has not been allowed to happen before. There are many situations in which accommodations are appropriate. It has never been until the hobby lobby case. What happened in hobby lobby and these other contraception cases is forprofit commercial employers are permitted to withhold what is otherwise required health care compensation. Some of the employers refused to cover any contraception. Some refuse to cover much of it. In the case of hobby lobby, i take her word that no one has died as a result of it, but tens of thousands of hobby lobby employees are deprived of certain forms of contraception including the i hud iud which is one of the most expensive forms of birth control. There have been cases previously in which people had raised religious objections to Social Security taxes or paying the women the same as men or paying minimum wage. Those claims have always been rejected. Individual companies have never been able to use the religious beliefs of their owners to harm third parties, including employees. That consensus has been broken down in a deeply fractured hobby lobby decision. It will have profound consequences for the way we understand religious liberties. And the balance between the rights of religious worship on one hand and a system of secular laws that protects everyone on the other. Meryl i want to get back to the notion of weaponize. Theres an argument that can be made on both sides about weaponization. I was asked you christina, the case that said a 1997 case, burner against florez, it has been 1718 years since the decision of that case. We are only now starting to see the focus on state level refroze or many refroze. There is a disturbing correlation between that and the passage in indiana of gay marriage. Does that chicks suggest that the focus on that has something to do with factors other than those being articulated . Kristina what was the last question . Meryl being articulated. Kristina several states started to adopt state versions of it. Many states felt they did not need to have protection in their state. The was a sister legislation. We are so nerdy. Were talking with all of these acronyms. For a cuban to say that quickly, and without tripping it is quite the feet. To your point of who benefits really on these freedom religious restoration ask, one of our client is a native american in texas. In 2006, the department of interiors sent covert Agents Department of interior had covert agents that when into his family powwow because could they had heard he had eagles im sorry, eagle feathers. There is an act that prohibits native americans that are not in federally recognized tribes to have these feathers. They sent covert agents and confiscated the feathers which were essential to his practice of native american pastor. It is thanks to the federal religious restoration act, the government had to return these feathers. It is true the original one was meant to protect minority religions. Most of our clients are minority religions. What it never said or never alluded to was anything having to do with what were going to discuss later, sexual orientation, or gender identity. I think the states move as moved as quickly as they could given the position. Meryl mike, i want to bring you into the conversation. How to you see controversies over florist, cake bakers . How does this play out. What kinds of accommodation should be made for people who have lives that may not be ones that are as easily accommodated by evangelicals, or people from certain religious beliefs . Mike it is a little strange. Im a noncombatant in this legal battle. [laughter] given where im sitting, and likely to be a casualty. [laughter] the history seems to be relevant here. This was a twopart test about compelling governmental goals that was cause championed by Justice Brennan and the aclu for many years. It was in effect for decades. It was really Justice Scalia who was the bad guy in this scenario who wrote this decision that overturned this and caused congress to react and reinstate his test. It was Chuck Schumer that took leadership of this. It passed the senate 973. It really was a point of agreement. It is a shame, a terrible shame when issues this important get sucked into the vortex of the culture war. What we are talking about is not just one issue among many, where talking about one of the great achievements of the american tradition. The protection of a religious pluralism which is good for the country. It has motivated people to good do good. Religion has, when it comes to hospitals, homeless shelters charities, a variety of religious groups. It has motivated the search for justice over the years. Prison reform movement. Other things. Religion is not religious freedom is not a problem to be solved or some controversy to be engaged in. When you hear George Washingtons statement from earlier, that is a thrilling moment in the history of the world. A power like america came to the defense of a genuine pluralism in which people could pursue their own visions of the good with respect for one another. I hate to see when rifra laws are used in ways that are suspect. It actually brings discredit to that cause. I would also say that the rifra standard which we have had for decades has never come up against this public accommodation loss. This hasnt been a problem for decades. All that standard does is say that there should be a balancing test. Not guaranteeing any outcome but accommodating deeply held religious beliefs. I think you could question peoples motives in bringing up rifra laws in the states. But this balancing test has been well tested with a pretty good method to accommodate the normal rules of the majority and a handful of exceptions of people who feel that their beliefs are being burdened. It is the courts that make this decision. They have been generally wise in its application. Meryl lets talk about the Little Sisters of the poor, and the notre dame case. They see more traditional in the sense that these are religiously owned and affiliated organizations that are refusing to provide particular categories of benefits. Mike, do you see a distinction between that and people like the green and honda family . Mike i think a lot of people engaged in this issue, there is some divide come even on the even on the part of advocates of religious liberties. Between those who put a great emphasis on the autonomy and identity of religious institutions, and those who would extend it for profit institutions. I think that divides some of the coalition on these issues. It is, indiana law as i understand it made sure that it applied to forprofit corporations. I think people may be more mixed on that. I guess i would defer to the experts. Meryl and i am going to asked. Greg . Greg cases like Little Sisters of the poor and notre dame and others is the second wave of challenges to contraception regulations. I think they present to important distinctions. The first is the one you mentioned, merrill grid these at least look closer to actual religious institutions than does a National Retail craft chain. On the one hand. On the other hand, these entities have received a significant accommodation and refused to take yes for an answer. Because for two years now, the administration has said fine come you dont have to include contraception in your health plan. All you have to do is fill out a form saying i object and finish send it to your insurance provider and they will provide the contraception coverage to your employees at no cost to you and to them. That was still not good enough. All of these entities were challenging it. Signing this paperwork made me evil. Administration granted even a further accommodation. You dont have to fill out the form. Fill out a form to the government saying i object. Send it to the government. Again, these entities have refused to take yes for an answer. The Supreme Court ultimately said is there is a less restrict it alternative because the government has created this accommodation for these nonprofits. These nonprofits, many of which christinas organizations represent are arguing that even filling out the form so that somebody else will provide coverage to their employees is objectionable. Basically we will not rest until our employees are unable to get contraception from anyone. I think another example of this sort of extreme weaponization of religious liberty, but i think it contributes to things that michael talked about. When religious liberty gets associated with denying women the vital health care, control over their bodies, refusing to sign paperwork, that is deeply troubling to the cause of religious liberty. You saw the same thing in indiana and arkansas. When religious liberty is associated with discrimination denying People Service and public accommodation, that is deeply troubling. Religious freedom restoration acts have become toxic. They have become toxic because they have been abused in these ways. When the governor is saying no this is not about termination, it is about his fallback is it is about that is deeply troubling and has eroded what had been a great consensus and religious liberty and i think it will do longterm damage to the broader cause. Therell girl christina, do your clients not take yes for an answer . Kristina those sisters are so unreasonable, they devote their lives to serving the poor. They take in thousands of poor people. They hold their hands while they are ill. They help them die. They are committed to life at the beginning, middle, and at the end. They just said, hell no we wont go. No, they did not say that word hell. The government has exempted millions of americans from having to comply with this mandate for commercial reasons. Secular reasons. They were the governments friends, they refuse to exempt this order of nuns and then they created this paper game. Sign here. Sign there. It is a money game. It doesnt take a lawyer or a mathematician to understand someone has to pay for it. When the sisters signed a piece of paper, it triggers a contract. Someone has to pay for it. They consider that to be an illicit thing. They consider that a sin. The government is not in the business of telling people what they can or cannot believe. I have three teenagers. Who has teenagers . I think it is reasonable to advocate for churches that consider human sacrifice of teenagers. Right . You would agree with me. The government has the right to come in and say in the interest of the state not to allow human sacrifice. For those reasons, the government can intervene. The answer is not government intervention. It doesnt take a lawyer to understand that a gay musician or a gay photographer should not be forced by the government or anyone else to photograph events at the Westborough Baptist church. This last week, but the aclu americans united said no one said that they should be able to participate. No one should be forced to participate, no one in america has ever supported those claims. Levy advocated for the legalization of marijuana. My children are watching. I have never inhaled. [laughter] why should she be forced, if she were an artist to participate . People disagree on religion and sex all the time in america. The answer is not to bring and in government regulation, and the answer is not to exaggerate claims. There has been intent on both sides that has not been good. That does not mean you wipe an entire body of laws that calls for a day in court simply because someones view was considered to be repulsive. Meryl what about the notion that the government is going to take over providing the contraception if the family does not provide it. How is that different than the case of the Conscientious Objector . If they dont get the service, someone else have to. Certainly a Conscientious Objector is fine. Kristina it is very different. When that Little Sisters of the poor say we cannot pay for it, that is different from someone taking it. They just cannot pay for it. The government is providing millions of dollars in funding through title 10 to planned parenthood clinics that provide these drugs to women that want them simply by showing up for free at no cost to the woman. This is all taxpayer money. The government has figured out a way to put a . 50 stamp on a piece of paper and carry it from florida maybe it is . 51 to get a letter from california to florida. Why can they not figure out a way to get contraceptives to women that does not involve them involve nuns . They put a man on the moon am of the there forcing the Little Sisters of the poor to violate their conscience and pay for drugs that the object to . That is unprecedented. I think shes losing the site of balance. It isnt for us to question the reasonableness of anyones willingness or unwillingness to sign a form. We balance interest. There are other people at stake. There are employees who will go without coverage if the nuns will not fill out the form. To say, well the government could pay for it. The government could pay for anything, but we would not say for instance that i have a religious objection to paying women the same as men. We would never say be government has money so they could make up the difference. No, we would say youre going to enforce equal pay laws. We would not say, i have a religious objection to paying them on wage area minimum wage. I think meryls question about the Conscientious Objector is right. Notre dames lawyer was asked the argument does that mean it would be a substantial burden on religious exercise for the conscientious object or simply to say i object . Yes, even that would have to be considered a substantial burden. That is all well and good for people to believe that is fine. When someone else is losing an important benefit as a result, that is where i think there has to be balance. The idea that im entitled to every impossible idiosyncrasy in my belief is fine, but as a result of that, other people lose their benefit, that is when it crosses the line. Meryl we are going to leave it there. Clearly not something we will be able to resolve. Lets find areas where both sides may agree more. That may get us back to some more traditional areas of the protection of minority religions and a majority society. The most recent examples is the hobbs case. I think that is an area where you more or less both agree. Yes. Christinas organization represented a muslim prisoner who wanted to wear a half inch a beard in prison. The case was brought under that religious persons act. We disagreed on how to pronounce acronym. She says rlupa. Even then. That was a case in which brought the coalition together. A modest religious accommodation that is important to someones religious belief granting a accommodation doesnt harm anyone. That is a case where we do agree that religious accommodation laws are serving their intent purpose. It would have been different if i have a religious right to not associate with women prison guards, i think that would cross over into imposing religious beliefs on someone else. We might disagree. The quintessential accommodation doesnt hurt anyone. No reason not to grant it. Yes, i think there is plenty of room for agreement on this case. Kristina one of the reasons the Supreme Court ruled that this prisoner had the right to grow the beard, it was because the state of arkansas had no real reason. There were no security reasons. The state of arkansas had said you cannot grow the beard the just because we said so. I was the weakness of the argument. In the case of many other religious freedom cases we were seeing the one because often times the government says you have to do it just because we said so. Like Little Sisters of the poor. Like hobby lobby. Like many cases where the government had no real reason to not make an accommodation and not make an exemption. But yes, in the end, we agree this was an important case. Did barry lynn, did he start americans united . No. Kristina you look good, very red barry lynn. 14 pastors in the state of North Carolina from the same denomination supported by americans united are suing the state of North Carolina. In the state of North Carolina samesex marriage is not legal. What the pastors wanted is their day in court. That is what the freedom of religious act it does. They give a day in court when there is a disagreement. Meryl lets try to get off of rifra. I am going to turn it over to mike. Are these cases becoming more difficult . As we can as we become increasingly pluralistic, is that becoming is that creating anxiety . Are we getting to the situation where religious accommodation cases may be difficult for the courts to deal with . Mike i think there is more at stake here than just details. Theres a conflict of vision behind many of these cases. There is a form of modern liberalism that says only the individual in the state is real. Protect individuals against oppression by other social institutions. Then there is the approach i would call principled pluralism. That says a community of communities that allows people to seek a vision of the good consistent with the common good is a positive thing. It has a positive value. I do think it really matters what perspective, what political philosophical perspective you bring to these issues. I come from a more conservative side that says the most important institutions are not the state and more than the individual. They are the institutions in which the individual is shaped or morality is passed. Where culture the standards of a culture are created. The government has a positive role to nurture that pluralism. I do think that there are deep political, philosophical disagreements behind us that are not going to be solved by appealing to these cases. Meryl how do we deal with pluralism in a increasingly Diverse Society . Greg very carefully. I think at the end of the day there needs to be humility and empathy. The word empathy is derided in some circles when lawyers say it. I think it is important. We are a Diverse Society. We have people with diverse views. We cannot always get everything we want. Sometimes we should get what we want, and sometimes we should not. I think what has disturbed me and many of my colleagues about the weaponization of the religious freedom act. The idea that my rights are different when my ability to act 100 in accordance with my religious beliefs is different when i am at church than when i am at a business. When i am at church, if i went to pray with only people of the same race and religion and sex orientation, i can do that. But if i open a lunch counter, or am a caterer, even if i devoutly believe that interracial marriage is wrong, i cannot turn away that couple. I think we need to recognize that there are other people out there. Religious beliefs are important and extremely, deeply held and about, but in a country i agree that a democracy is mike i agree that a democracy is designed for disagreement, but it is undermined by individual content. Mutual contempt. There is an emphasis on civility empathy. I was in salt lake city, utah talking with Church Officials. They really did attempt a process by which Church Officials met with gay rights activists and legislatures in a difficult negotiation to come up with an approach. It is an exchange of sorts. It specifically protects gay people in public accommodations, which i think was regarded that side is real progress, and specifically protects the ability of religious institutions to maintain their identity in positive ways. Jonathan roche who i know was involved in that effort in hopes it may be a model for some other states. It could be. It shows the possibility of civil disagreement and at least minimal agreement on some very basic ground rules of pluralism. Meryl we talk about civility, lets also talk about what was at one time considered to be a repository of civility. That is the College Campus. Theres a lot going on right now in terms of religious liberty and free exercise. Is the approach being taken on the campuses providing access to everybody . Is there a right approach . Is there enough respect for civil discourse on campuses now . Could campuses do better . Kristina greg is the expert on this issue. I think it is closely associated to the point you have made having to do with civility and empathy and accommodation. When my parents first came to the United States, we lived in a tiny house. In puerto rico, my mother had been in a concentration camp in germany, my father had been in cuba, they had some bad experiences. Whenever we sat down to dinner my father would close one window in the kitchen. It was very hot in the house. He would say, just in case. He was afraid our discussions would be overheard by neighbors. As he understood, this is not the way we live in the United States. When we open the window, we drank from the freedom of expression. We could not disagree and often and yell it loudly enough. The reality is this for as much civility as we want and empathy, sexual minorities particularly and religious minorities, have mutually reinforce the claims against larger societies. It is so important and vital no government should touch it. No regulation should touch it. So much for civility because to matters of human identity. The government should protect them and not invade them. Religious liberty is the ability to live according to your deeply held convictions. Whether that takes you to organize religion or no religion at all, there is no room for government intrusion into that life. The same thing should apply at colleges and universities. Now it is the trend if your group does not agree with Larger Society for whatever reason, you should not be allowed on campus. That is wrong. It tears at the fabric of American Society and freedom when groups are not allowed on campus because someones view is held so repulsive it is not allowed in society. Greg let me take a step back. I think i heard there is a lot of what christina said. I want to start with a College Campus and tie it up to a broader point. The specific issue she was alluding to was that many colleges will recognize certain student groups which gives you access to certain resources and whatnot. In order to take advantage of that, you basically have to have a nondiscrimination policy. There has been objection by certain religious groups involving exclusion of people of other religions or gays and lesbians, the case went up to the Supreme Court. The Supreme Court upheld that even a Public University could enforce nondetermination policies on student groups. Even in those cases, student groups could use university facilities. They could get certain benefits. If it is a religious group, they should be able to exclude people. I guess where she and i disagree on this issue and the broader point is that we dont live in a 100 libertarian society. We balance liberty with other interests. Things like equality and nondiscrimination. Especially in the unique environment of an Educational Institution it is reasonable for a university to say if you want a university recognizing a group, we are going to require you not to discriminate. It doesnt mean you cannot worship however you want in your dorm room or anywhere else, it if you want to take advantage of facilities, it is reasonable to say you have a nondiscrimination policy. I think this touches on a broader point. Weve never had this religious beliefs you can do whatever you want. The Civil Rights Act produces individual liberty. You cannot turn away africanamericans from your barbecue place. There is a case that went up to the Supreme Court called piggy park. In addition to being delightful to say, it involved a Restaurant Owner who said he had a religious belief that prevented him from serving africanamericans. He wanted exemption. The Supreme Court laughed him out of court. We are balancing interest. What is appropriate for settings at a church or home is not appropriate for other settings like a commercial spear. We have to do our best to reconcile a lot of interests and not allow any one of them to be a total trump card. My point mike there can be a human cost to this controversy. I would add that there can be a human cost to this kind of controversy. A few years ago, the Human Trafficking programs located were denied funded by the Obama Administration because of other policies. They held religious policies. That was a real cost. Look at Gordon College in massachusetts. It worked for years with a local lower Income School district and devoted 14,000 men hours of volunteer work every year. The School District has made a decision. Gordons religious views and other topics they discontinuing. I think there can be when it comes to provisions of social
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