[inaudible conversations] good afternoon. Welcome the cato institutes i am the director of the cato center for constitutional studies and your host for this event i also will welcome the cspan audice began to those lght streaming and later through the archives. Were here to discuss religious liberty as it may or may not be exercised in the context of the of modern Business Corporation with statutory and constitutional law. To mark the publication of a new book on that subject religiousiberties for corporations . And i know the title ends with a day question mark. In the book the two main speakers ilya shapiro and david gans have a comprehensive analysis of the issues ainst. Host day the blockbuster decision of the Supreme Court handed down at the end of the last term that rejected the obamacare regulation provided Employer Sponsored Health care plans to provide or that required employers to provide free contraception coverage. The book is based on a series of debates that took place earlier this year at the National Constitution center in philadelphia moderated by Jeffrey Rosen. And this book they examine whether Forprofit Corporations cancer of religious liberty exercise claims under federal law. And what the applications are now the Supreme Court has ruled in favor of hobby lobby. A question that i hope they will address along the way and if it has become an exception to a government rule to be justified ce by case or from the constitution it is governmentule toe justified. Each speaker will have 12 minutes starting with ilya then they will take three minutes each to respond. And then we will have a 1 minute commentary before we turn to the audience fo questions. Now we have our two main speakers with brief introductions. Ilya is senior fellow of constitution studies that the cater Institution Institute and contributes to a variety of professional publications and provides media commentary included in the cold their report. And has filed more than 100 friendofthecourt briefs before joining the cer institute was a special adviser to the Multinational Force in iraq and david gans director of the Civil Rights Citizenship Program at the accountabilities Center Including the history neared a series. In to join in the center afte serving the Program Director from the of law schools for constitutional democracy and as an attorney with the bread and center from the nyu school of law. So we will begin with ilya shapiro at. [applause] the key for coming and for watching it into yr in saudi at 3 00 in the morning. [laughter] everyone has heard the Supreme Court has ruled that they can fire womens use Birth Control in religion and trumps all other values and ateast that is what my twitter feed told me with the Supreme Court decision burwell hobby lobby came down. It had nothing to do with the power of big business of their freedom to use any type of contraceptive or to balance liberty against other concerns. Hobby lobby was a straightforward question of statutory interpretation regarding whether the government was justified in this particular case to override religious liberties. The Supreme Court ruled that closely Held Corporations cannot be forced to pay for all employees contraceptives if that would violate their religious beliefs. So there was no constitutional decision the expansion of corporate rates or weighing of religion vs Birth Control. But lets step back. To the department of health and Human Services provided 20 contraceptions that all insurance plans had to have to satisfy the obamacare employer mandate. Throh interpreting that requirement all the legislation said you have to cover Preventive Care and interpreting that davis did 20 contraceptions for an for work of those two reassesses forprofit and nonprofit objected they tended to be pills and other devices the morning after pill d the iud that working part to prevent a fertilized egg from implanting and people objected on religious grounds. Including david and Barbara Greene the founders and owners of hobby lobby i action have never been to a hobby lobby but they consider it part of their christian duty to provide Good Health Care to their employees but they object to these four items on the list of 20. Now complying with the mandate meant daily fines. So on their own behalf and through the corporate entity sued the government under the First Amendment but more importantly of the freedom restoration act of 1993. It is a curious statute that calls for a narrow case by case adjudication to Government Actions it was passed in the house signed by such as Chuck Schumer in the house and ted kennedy and the senate. These religious zealots intent was of the 1980 Supreme Court ruling by that humanist Justice Scalia that approve the constitutionality of applicable laws that forbid religion so long as they did not specifically intend to discriminate that is if objectors wanted the objection there would have to seek it from the legislature and not the courts. Courts are supposed supposed to look at if it actually imposes a significant burden that nevertheless is a compelling interest with the least restrictive means to achieve that interest. The burden is clear in the court ultimately assumes the asserted interest was compelling and to litigate that there was not a compelling interest of the free contraceptives they said Public Health and gender equality is the block a broad interest could be some lower courts that the basis was not too compelling to say our interest is in good public policy. So whether this was the contraceptive mandate was of these respective means and that is where the government lost because it could not show there is no way to provide fre or cheap Birth Control without burdenin believers. The government could pay for the contraceptives themself or provide tax credits or makeg i dont think that ethical system being religious means it is suggested less protection but none of these look at the rights of humans including voters or officers gore shareholders as Justice Alito said protecting the free exercise rights of corporations protects the religious liberties of those to control them. But the rights flow from indiduals from the people who make up the groups to which we attribute tse rights corporations, partnerships corporations, partnerships, unions, political advocacy groups, buddys playing poker, this is not a controversial statement and did not start with Citizens United that freed up the independent political speech including corporations and unions. For a long time we have understood corporations have rights if they didnt the police could storm the office of ibm to take their computers to say if he likes Rockefeller Center he could take it without violation of the fifth amendment. It seems odd to say as the llc or partnership it is okay but once you incorporate there is a magical switch where you lose your rights nor does profit motive matter we have a jewish and muslim butchers the purse to according to religious beliefs one was a christian bookstore but they sell exclusively christian and literature. So put the misdirection to rest if you pierce the corporate veil i share that practical skepticism that all stakeholders police but if hobby lobby went public tomorrow with all of them sec prospectus and investor memoranda lead out its business was not defrauding anyone there would not be anything wrong with that. But herehe First Amendment protects free speech and free exercise of and the people dont lose there rights when they get together through rifra. But the larger conclusion is the essence of freedom is that government cannot legally force people to do things that violate their conscious. There may be an argument of womens rights to religious freedom but that is a false choice says the president likes to say. Without this role women are still free to get contraception or abortion is you cannot just force the employer to pay for it. If hobby lobby is employees had no access we would have heard about it by no but with the intersection of libertys there is the bigger issues it is the latest example to turn health care or the economy over to the government. When something is socialized or treated as a public utility were forced to fight for every car out of the brigade. The more government controls health care or education or even marriage i called this process hobby lobby with National Defense orublic goods we largely agree that with economic regulation now that the government dominates the at the expense of individual liberties of those whos supported it before are rightly concerned they are forced to do with their religious beliefs prohibit but that all comes with the collective territory. Thank you. [applause] they use so much and also a to cato for putting on this event it is a pleasure to share the stage with ilya and roger sometimes we agree sometimes we disagree but ilya told the story that hobby lobby the applied a statute case by se adjudition by one to start this is the big deal the first time in the nations history the Supreme Court has given secular Forprofit Corporations ligious free exercise rights and religious exemptions. It is rare for the Supreme Court to say you can look at instances in the recent pa like that again case butted it is rare to say the Supreme Court has said for the first me corporations have this right in more than 200 years of carnations story but it does say secular prof corporations are entitled to seek exemptions from federal business laws. Into open the doors to new claims for religious exemptions is a case by case to say they dont get exemptions but they do . This is a huge shift that existed in one of the things is we have to see what will happen have religious exemptions . I dont think it really answers that question but it says perhaps not in the race context but gender or Sexual Orientation is up for grabs and to meet the big things that are going on with hobby lobby i want to focus on those and we will turn to rifra because it did say rifra case. So first of major expansion of the rights of the corporation ilya backed up the for the first time of the history of the court extended exercise rights a right that is never afforded to them in over two centuries and at is a big deal. But what is important is the exemptions that it has been afforded. Allows corporate ceos to put religious beliefs on bare employees and that is a troubling exemption that is the very big part of the hobby lobby story and why the court is going in the wrong direction. So let me say a little bit that i will address ilya point. This book is about addressing the larger issues as well. Swy will start with the constitution. So what we see with hobby lobby and other constitutional case is like Citizens United is the Roberts Court was spurned the the basic understandings when the constitution was founded it was very clear that corporations giving equal rights would be harmful to the there can people during debates of e bill of rights to talk about extending to individual americans but when it came to mention corporations the framerwere extremely worried that should be give the federal government the power to create a corporation . The framers said know they were worried about making corporation is artificial entities and they specificly declineto mention corporations. So now powdery treats corporations given the fact individuals come together to be profitable in the Business World . So they have some rights and most are connected to converse and profit. Is the book discusses this that make that they do not have the same rights as individuals and not withstanding but they dont have the rights to protect against selfincrimination and the court recognized in those cases that that right is right about conscience and Human Dignity. I think the same saying i true. When i started this to look back what did the framers say about rligious liberty . The founding generation understood it was rooted is on freedom of consciouan Human Dignity looking at the writings of virginia and allows them to have their case and eat it too and what is signicant here the court has done mething the Supreme Court has never done in the past. To strategize the history the book starts with the jewish merchants in the early 19th century in which the 60s and then the case in the 80s with the amish about the free exercise clause. And in all those cases businesses according to our basic freedoms and all those cas the court said you are not entied to religious freedom. In case after case even with Business Owners and not corporations. The court said you are n allowed so hobby lobby opens the door to a new set of claims in what is most troubling is the rightof the employees. It gives the voters to oppose their religious beliefs on their employees with the right to Insurance Coverage and those who have deeply held convictions of their own wouldnt be the most protected influence of contraception. Thisives employers tremendous power they should not have to check the Human Dignity at the workplace store. Now ilya focused on rifra island to end by noting that rifra was a Supreme Court ruling that it never requires religious accommodation. But most of the time rejected the claims for Business Owners in the case that was the most relevant was the of amish Business Owner and ask for religious exception for Social Security payments in the court said you are not entitled because that would put religious beliefs on your employees and i think that is what should have been followed that they bled have upheld that from that with the Supreme Court supplied. Okay. [applause] davids real problem is with rifra not just david but anyone who doesnt like the rults of hobby lobby because rifra standard is quite clear is there is substantia burden twoway held belief made up for the case ofitigation by those who are arrested for marijuana or dtribution those a claim to be the church of marijuana. Whethethe was the compelling interest rather a means to achieve it. If that is not the right way to balance the religious objections then rifra should be changed or abolished. Senator patty murray said get your boss out of my business act that did not go anywhere but that is the way that rifra worked. Or perhaps with obamacare itself for wit the way that department of hhs ticket or the way the department of justice did not extend extend, accommodations for for profit businesses only serve nonprofits in each of those stages the implementation the regulations in the accommodations each of those steps the government could have made this case galway but no. More important to provide employees go women generally or gender equality is forcing people to bend to the will of what e government dictates is that correct you and that is a real problem. The there is no substantial burden it is case by case then you lose if the government has a compelling interest then you lose like antidiscrimination laws. Now assuming it is appli to private businesses that cato we have some qualms but there is no other way not having private employers to discriminate so a allenge john you religious grounds has to fail so security payments there is no other way if everyone pays for each others retirement in to take the money from the different peop. You cannot provide it publicly it is the different issue that we tk about with a contraceptive mandate. So ultimatelthe issue of corporate rights is small and the vote was five two with justice taken and briar did not feel the need to reply one way or another. The reason why was because that hhs mandate that is so rare and unprecedented to force people to their religious beliefs for no particular reason. Thank you. [applause] ilya says my problem is rifra but i think whats ilya mrs. Is what rifra wa all about to create a balance the right of individuals to seek redemption a statutes usually generally applicable to religious and nonreligiouslike and only of very small number of claims for religious exemptions were mandated. En quite consciously to have a new body of lot that has existed since the nation was founded. Ilya said the governments interest were so vague. They were not paid but to reassure women cannot have access to contraception. So the most expensive form of contraception that i e. D. Hobby lobby said we want to pay for it you are a hardworking woman depending on insurance you will not be able to achieve it to obtin those contraceptives to control your life and this is the way that it allows the owners of hobby lobby to impose on their individual employees their religious beliefs. If you take seriously the bodies of w that rifra was designed to restore that exemption but ilya says the government can pay bu the amish odors should have won that the government can make a penny Social Security payments that destroys the balance that is supported by two centuries of lot. And with two centuries of First Amendment lot. In to extend the accommodations . Of course, ilya mentions those who acvely challenging with the accommodation in to say we dont think they will succeed but the day after it make it sound like that is separate the good one. So that basis to give businesses rights to churches that you have not even accepted the legaty of that accommodation and. But to recognize the accommodation because of the rights of employees that the Supreme Court got it right when they made that claim. Thank you. [applause] now we will hear a roughly 50 minutes response fr professor barnett to give the speaker is a brief introduction. Because i could go on at great way. Larry he directs the Georgetown Center in the author of many books and among his books are restoring the loss constitution that plays into a the introductory remarks also constitutional law case is it in context that historically unlike other books it also doctrines and most important for our purposes here today woodcraft the legal challenges before the Supreme Court in 2012 please welcome randy barnett. [applause]. Is great to be back i share properly disclose at the outset i do not disagree entirely with teeeighteen but my role is not to pile on but the way Harvard Law School did run ask me to debate both charles and larry on the constitutionality and that was not a fair fight. It would take at leas six to take you on. And i should disclose imf big fan of david zimmer the accountabilities center is trying to do with behalf of a progressive the outcome. Best cac filed the a meet this brief on behalf of me and other scholars to contend the individual rights fr state infringement from the 14th amendment so we Work Together however before i offer some observations and want to briefly stress that i not only agree with ilya conclusion is that the justification he offers for them there right to freely exercise ones religion is a natural right possessed by inviduals in the free exercise involves contact not just belief and republican governments are established with a preexisting rights including this one and individuals do not lose there rits when they join together to make a profit. So those that enable individuals to limit eir viability and that governments that do this cannot justly deprive them of there rights because they have chosen to use the corporate form or they associate in hopes to make a profit. Whether or not persons to control the corporation are exercising the is the question is that must be resolved before you can reach a conclusion whether it is restricting that right and it is hard to see how management of walmart or apple r engaged in free exercise the way hobby lobby is and i agree that that it is an easy ground but i want to pull back from this dispute to make general observations why we have this argument. Had congress been held to the original meaning of the constitution the Affordable Care act would have been unconstitutional because it exceeded congress is the enumerated powers under the Commerce Clause even when combined with the original meaning of the necessary and proper clause. So even if it were followed there is no need to reach the First Amendments free exercise. This was true as allow with lopez precision guided states because the court held congress exceeded the enumerated powers unr the Commerce Clause when it enacted the ban possessing guns within 1,000 feet of the school and it was a necessary to considerf that might violate the individualight to keep and bear arms and lopez was decided before the Supreme Court with Second Amendment does protect the individual in the shows how enumerated powers is a way to protect the natural background rights of the people without having to identify and protect these ghts per se. The hobby lot the case shows once the enumerated powers scheme is breached the court must address the due process clause. In my view it is the due process clause that authorize the courtso assess a pay particular deprivation of life Liberty Property violates the right or one of those enumerated background privileges by the people. While the First Amendment and theates the rights of free seats speech and free press and assembly but recognizes the rules of courts to protect these by congressrom infringement. Said every First Amendment claim is also a due process clause claim. In short given the refusal were living in the constitutional world in which we fall back on due process clause fundamental rights because the first right of the structural constraints has already been breached. In this way we give you the construction of constrats inuding the powers of congress should be limited to function like the structure of a ship that designed to keep the vessel afloat to preserve the passengers life and liberty. And though some are protected by the lifeboats when the structure has been breached. At that time of the founding the public refused to get on board until the framers promised to install the lifeboats by adding constitutional amendments protecting rights retained by the peoe. So my first pnt is we would not be discussing the firstmendment rights to a chosen to organizeok if the original meaning of bell whole constitution by the Supreme Court in the world a secondbest were staying a freak afloat by relying on the lifeboats that have been provided for, a general point that is second best that the powers of congress are thought to be so broad although not quite a limited the accord is forced to make car bouts tre are four individuals in the floor above fundamental rights for groups that redeemed to be suspect classs and for State Governments under the general heading but n the original meaning of the tenth and 11th amendments these external constraints on the powers of congress may or may not be directly supported by the original meaning of those clauses that the car bows are to be based said current doctrine has been devised to compensate for the fundamental mistake of the internal limits of the enumerated powers of congress by the scope of the power itlf rather than worrying if they violate rights so the car bounced to bring us closer that would be breached as a whole that would ochre in their absence that is what i mean that we lived in the world of secondbest. Now this is not resolve the debate if Forprofit Corporation have free exercise rights but it does explain what looks like historical special rights or a carbide is the secondbest from life liberty that all persons are protected that would otherwise be protected to hold congress t enumerated powers. We can see the limitations to employ the original meaning of due process are free exercise of religion that does not also fall to the original meaning of congress combining the broad construction of federal power within a narrow and precise meaning of life and liberty and property have a result as far removed how the constitution is supposed to operate to protect the rights or privileges or the immunities considered as individuals. Before concluding another distinction the meaning of the text of the constitution is one thing but how then it gives legal effect is another new a regionalist called the activity, it constitutional interpretation when you try to figure out what it means you are a engaged in interpretation and then they call that activity legal effect constitutional construction. With interpretation original list think the meaning of the constitution remains the same or should remain the same and tell it is properly changed by the article five amendment. It in this proposition i think both david and teeeighteen agree this is a propositio to which the accountabilities center has committed itself. But when it comes to the original meaning of the text by adopting constitutional constructions were no longer a engaged to ascertain the meaning but the implement the doctrine that do not violate the spirit of the text but apply it to particular facts and circumstances of statutory restrictions of interference with life liberty and property. I offer this because it helps to understand when we answer questions where the corporations themselves have free exercise rights or fare Better Health of the individuals or the question of those that they talk about were the most faithful to the original meaning we tried to devise doctrines that are the mostaithful to the spirit of the constitution does not engaged to interpretation improper. In instances such question ofpplication are not matters that a cable to be resolved directly by th original meaning. Instead we try to figure out how this is best given legal effect. Such a likely to revolve overtime even as the original meaning remains fixed those of are clearly resolve gore best resolved by previous doctrines hint that can be described as a living constitution that is more accurately conceived as living constitutional law. So let me noconclude by saying something that i should have sa at the start. David and ilya little book is simply marvelous. I dont think i have ever read a clear exposition of the difficult ctroversy in a manner that renders it is also understandable to non lawyers but yet to be entirely legally accurate and precise it is a real tribute to both of advocates. Each made the best case for his own position if you got a tastof it this morning without ever stepping to distort the arguments of his opponent. I am slightly in lot of both of your performances and i am not known to offer such praise lately the Accountability Center in the cater institute should be both proud and grateful to have such principal players to work for them and also of to Jeffrey Rosen for presenng a serious argument in the manner toe by the educated public it bodes very well for his tenure as head of the institution soon if you have any interest of the hobby lobby case i cannot more strongly recommend this book to you by it and read it or forever ld your peace. [applause] and now let me pick up on those last remarks you just had a taste of the debate here today you can get a richer discussion in the book. Before we open for audience questions, let me offer david a chance to respond to randys argument that the difficulty you had to find the president s for the reason you founded to so novel is the effect is that it did not come up before the government was not issuing statutes like obamacare to order people with a format that violated the religious convictions of that is the reason you were unable to come up with more precedents. I dont think that is that fair characterization and. If you go back through American History, led the debates that teeeighteen and i had started not long after. With the tension between if you set aside the issue of corporation with religious beliefs come as one Supreme Court said does that allow you to claim the exemption . The first cases involving Business Owners came out pennsylvania in the first years of the 19th century so those who have a religiou view shod they be entitled to exemption of the applicable law that applies to their faith . That is the issue that has been confronted throughout america in history some of the biggest ses that are discussed that the United States verses lee that is a huge president of hobby lobby that we debated many different times even in the 1982 case that was involving a request of exemption from the Social Security act. This issue is one that you see throughout American History sometimes on the federal level sometimes that the state level and if you look at the Supreme Court dealing with the corporations there are enormous number of cases to go back to the early days of the nation many of them deal with action on the state level because the framers did not want to give the government and the states did a lot of the work in the early cases but the Dartmouth College case of state regulati that new hampshires violated the constitution because it was articled one section protection against impairment of the obligation. There are cases over and over. Is the bark of how big hobby lobby is the court is speaking on this issue. It is not aonstitutional case but Justice Alito says many of the things that ilya saysto set it in a constitutional framework. Suggest to say it is a statutory issue does not do justice to the fundamental debate. So essentially david is arguing the obama legislation with that anomaly of the great history the issues came up so much more often at the state level. Right. I was not making quite that arguments why will l you defend yourself but i will say that things did change with the passage of the 14th amendment that a federal courts jurisdiction to protect the liberties of the people from the State Government at the founding this would not have been a deral issue but it was only aft that. In the courts were very slow to use the 14th amendment as they should have been to protect individual liberties after the setback of the slaughterhouse cases that started to get the 14th amendment only in the 20th century they started. The first and the Supreme Court used the First Amendment to invalidated federal law was 1965. This was very late developing and it is not surprising you would not have a lot of early precedent like that. Exercise of federal power that could not be jusfied because thereas no limiting princie and just to oppose this act would be to basically give police power which they said that congress doesnt have so we were not making the argument. Today i am making the argument that the hall of the act and if the affordable meeting was respected you wouldnt have to reach the First Amendment question of the free exercise. Host lets turn to you folks and wait for the microphone to come. Tell us your name and any affiliation you may have and im going to direct one sid up while you are asking the question and send the microphones. Keep your hands up. Lets star right here. A r2 with the heritage foundation. I appreciated this talk. It was helpful. And i have the book as well. A quick comment and then question. Corporations cant pray. I think that is an impoverished view. My question is walmart coldnt possibly be. Hobby lobby was a secular corporation and the fortune 500 companies i think it would be difficult for them to show they are exercising religion, so you are grasping if we can determine when a corporation is exercisig religion but the question whether it is religion or not they get together. When can you get to that issue. Thats what the policies are. It didnt just get into the particular methods of Birth Control once obamacare was passed and nobody disputed that. They manufacture the objection pursuant to litigaon. So those are the sort of things i think the courts willook to. They are not looking to evaluate in the theological dispute about whether you are correcting your religious interpretations but they will get whether you have the sincerely held religious belief and whether indeed the Government Action has a substantial burden. Host i have two questions for vid. One is you talked about the corporation of the fnding and the meaning of the term and what the founders thought about it and i wonder how you rectify that with the fact that there were no statutes at any state until 1795 ended up really until the 1850s with a corporation meant something entirely different like a state monopoly. And the second question hobby lobby was denying the federal right to the women employees. Can you describe what that rate is and what it looks like when it gets through hhs . Guest on the first question if you look at the sweep of American History, obviously there is a fundamental change in both what rporations do and how they are regulated and that hanges over time. What doesntchange is the fundamental idea thatis reflected in the founding debate that there is a difference between corporations and we the people and because corporations receive special privileges and what the special privileges might be might be different in the monopoly seting. The corporations receive special privileges that individual americans cat receive. That is the defining aspect of the corporation. And because of tha but government has a broad latitude than it doesindividuals. Thats the principle that is reflected. So even though we have the neral Corporation Laws as opposed to the charter saying the corporation shall do such and such to think that doesnt change the authority to ensure that the corporations dont abuse e special privileges and that gives it a special regulatory latitude. That is clear under the state law to regulate the corporations especially the charter on the federal level. Its complicated by the interaction with the scopef the congresss powers which are broad but there are limits to them so that i think that comes in so my general take is that it esnt matter the way that corporations have a move towar the General Corporation the principles hold. So the right as i understand it that was reflectein the hhs regulation was employee or student to provide come and certainly that still holds to the Public Corporations. If you have an employee sponsored health plan you have to cover the full range of contraceptives including other in the regulations provide for. There are no new regulations to deal with the hobby lobby decision that dels with both the hobby lobby situation as well as sort of the Little Sisters example that are under challenged, but i think it is the same one the court talked about. A of the loose use of the word corp. Is what bothers me because they have changed dramatically. And hobby lobby is a closely Held Corporation with those of the significant corporations have a significant split between management and the ownership. So my question to all three of you, maybe just the two of u based on this where we see te move by lae corporations rather than a the closely held Public Corporations asking for exemptions from a variety of regulations. A i dont know why they would if they gained the religion existee here and if not then it doesnt count. Sohis is a challenge and i dont know if they are going to make some sort of a religious objection. Im not sure what sort of incentives that sets up for the corporations who are to become closely held. Indeed if the main motive of the companies especially the big public one is to make money, and its religious mission they are detracting from that, so again if somebody wants to assert religious beliefs than it would be treated according to this stutory rubric in the Public Company setting it would be very hard to do not impossible but again as long as it was clear to all in investors i suppose it isnt out of the realm of possibility for future company the future company to be set up this way. It would be hard for microsoft or somebody to unwind itlf and add this religious mission in order to eventually make some sort of religious objection and its kind of a hard battle. A there would be no objections in principle between the closely held and on the closely Held Corporations. You culd just look to the articles and corporations in the in the corporations and the bylaws and so forth andsee what the corporate owners want to do and if they wish to raise the religious objectis it seems to me that the court would be hardpressed to draw a principled line between the closely hd and do not closely Held Corporations. I would make the point that you look at the reasoning it applies both to the closely Held Corporations, some of which are quite big as well as public ones grappled with an old argument of some in the opinion of what circumstance would the shareholders say we have a religious point of view, and the courts have left us with a broad view of the rights of the corporations that i think would encompass the Public Corporation but its a technical question whether forum corporate question that says this is the religious view. I think i ran during the runup there was talk about te argument. Perhaps we will see the claims in the future and we will have to watch out and see the this question with some background is directed to daid. View as i understand objected to the concept of the corporations behavioral exercise or religion and raised the examle to incorporate that example came up in the spring court oral arguments. Why dont we expand on that example . We decided to put all of the ventures into a Single Corporation so the generalpurpose corporation 1 of the business is butchering. Is it deprived of all protections come and because it is part of a general commercial corporation i dont have a specific answer because i want to know what is the regulation that is being subject to and what is the claim for an exemption. I need some specifics to speak to it. I will say in the past in many cases, customers that have their own rights to assrt have come into court and said look if you put in place this retriction it establishes my ability to exercise my religion and i get the challenge. That is what happened in some of the cases in the 1960s. So, i think that they are raising these cses in the example that may make it to court anyway. Claim with the center for the inquiry which was the only organization that opposed from day number one and so are all these problems comg down the line. We have had in the hour and a half but weve had we had a lot of mention in fact i lost count of the number of mentions in the free exercise clause that hasnt sent debate within a single mention of its equally important brother the establishment clause. When we look at this application it is unconstitutional because initially it wa about turning around for example and saying if you want to take hallucinogenic tea theres no one else harmed if we turn around and allow you to do this. The difference here on whether it becomes unconstitutional is turning around and saying the right of an employee is now subject to the relious beliefs of an emplee or. And if they dont share their beliefs, we have to prioritize and use the government to prioritize the beliefs of the corporation over the ghts of the employees. How is this not a categorical violation of the establishment clause x. Spigots not prioritizing the beliefs of the employer or the end end he. Its saying if there are alternative ways of accomplishing the same goal the employee, meaning it gets the exact same right. Fullstop or what have you through a different way, the government accomplishes it in a different way then you have to yield to the religious objeion. So it is not a sitution of yone whos employed here cannot use a particular contraceptive or we wont ire women of childbearing age or higher women of childbearing age who have sexual relations outside of marriage or anything like that and that will be a different case articulated in a different way. I hope hope your hope you are . Beat why is it unconstitutional because it proves religion over Something Else which is a much broader interesting question. The question you ask is easy to answer because why is it unconstitutional for the background because the constitution recognizes the right as well as the natural rights and i would argue that the conscience is the protective of the religious consciousness protected by the First Amendment as well in various ways. So our Constitutional Order presupposes the American History out of which the frmers came and presupposes the concern about government infringement so as long as the government isnt imposing some sort of religion they can say that they have certain rights to be able to exercise their beliefs. Isnt thia case of conflicting rights. Its to interfere with state establishments are currently in existence that ended in this country until the 180s. Sonata being about the rights at all when the federal power to establish the National Religion. It isnt any more coherently incorporated if you dont even want to use the rubric. It is another power restricting federal power restricting the provision and nobody thinks the 14th amendment somehow applies the tenth amendment to the stage and neither i think what it is no power in federal government be applied to the states in the due process clause or the privileges. That is not the law that we have. Its not the constitutional law were doctrine at we have. I think if we go back to the origal meaninghere isnt such a big conflict between the establishment clause and the free exercise clause. Peter montgomery at the american way. I was wondering if you could dress briefly the religious claims made against the nondiscrimination protections on the basis of the orientation. It depends what kind of in discrimination law you are talking about. Assuming the constitutionality there is no way to achieve the goal banning prohibition on the protected class band to band together employment practice and in terms of the serving customers but the little different in the sense that for example the new mexico wedding photographer who had clients but didnt want to work the for Commitment Ceremony but mexico says despite that not being willing to work the same ceremony which is problematic i think becae there re 100 other photographers that could achieve the same goal and it isnt a situation like jim crow where they supported the black travelers from being able to find a hotel room or restaurant or Something Like that so you had to break the monopoly or the chapel and all these kind of private businesses again given that there are lots of alternatives, commercial alternatives in the te case to bring down the larger edifice. So these are the kind of complicated issues. But ultimately, i think you can enhance liberty by looking at whether someones rights are indeed being engaged by the government to say i think i was one of the few people and cato was one of the few organizations that speaks out for both Marriage Equality while i would rather the government not be in the marriage in the first ple but if the license is to be able to give them at the same time if you are a private business and you object to working on marriage for the religious or any other for that matter i think should be le to. I want to make a point made earlier we heard a lot about how peoples view of the constitution haens to match up with policy preferences and isnt that convenient. I do think that we see a lot of that on th left people that believe in the a living constitution extends to match almost exactly with how every result ought to come out in this particular case. I dont share the hobby lobby religious objections to contraceptives. I think contraceptives are perfectly okay. But i do think that they have a free exercise right to not be imlicated in this practice but they think its a moral. But i dont share that particular view and with respect to theestablishment clause, i strongly supporthe separation of church and state and im not religious in and of myself and i think the original meaning of the establishment clause doesnt establish the proposition to that extent. I just this is where i think the constitution doesnt apply doesnt apply enough necessarily for my own viw of what i think the government should do with respect trade, but i do think it is that the constitution says and that is the opinion that i was given. If i am not istaken just a point of clarification and the objection of hobblobby was not the contraceptives generally. Okay. Yes sir. I wanted to clarify a little bit about the congress not having the authority. Ank you. That is such an easy question to explain. The congress has limited enumerated powers one of which is to limit among the federal states and the congress among several states is about the transfer and salient movement of things from one place to another and that is not what obamacare is regulating. Its both the sale of insurance which is not commerce under this meaning and also regulating a little local provision of Healthcare Services that are also not commerce under is meaninand meaning into what is it within the power to regulate almost any of this. So thats why it is outside of the power to do it. It might be within the states power to regulate because the states have genital powers that are more general than congress but this is the reason why congress has no business in the field whatsoever. And then if we were to respect that limit, we wouldnt be having this debate about interference with individual rights because it is only when congress has the power to do anything it wants all of a sudden all of the individual rights that could be infringed come to the floor and shows why the structural constraints on the power of the congress and the federal government generally is itself a protection of individual rights rights but has rights that is often require you to formulate what rights we have and let the judges and power them to protect them. Can you speak to the original intent of the phrase in god we trust and its usage on the currency etc. And do you feel thatit should be updated or should we continue with this tradition . It isnt so much the original intent that the original meaning is likely that they trusted god so that is how i would interpret the meaning of that. Thats what it seems like. I would go with he obvious meaning of it. But if what you are asking about is whether somehow that is a violation of the establishment in the prohibition on the federal government is i just dont see how that would be i think the idea of setting up a National Religion of what was called the establishment of religion had certain characteristics. State establishment of religion. They were in existence at the time of the founding. And what the way the establishment clause worded is it that Congress Shall make no law with respect to the establishment of religion that basically says you may not establish the religion and an and me not to establish the religion. You must not make any law with respect to these doubles with. That is at it says. And that is what was thought to be in in the early years of the country and none of the states that have established the religious objections to the astonishment clause and they ratified the first. The question is does the 14th amendment changed that somehow. It creates an ndividual rights against the states because really it is the states that are doing this sort of thing and i think the 14th amendment di not change that because this aspect of the 14th amendment, the First Amendment was not a personal privilege or immunity of citizens of the United States. It established until 1836 the massachusetts was the last. Just a practical concern and i know people on the left wont want to hear this. You want to share some of te same values and place the work and if there is antagonism versus the company that youre going to work for it is probably in a practical sense a good idea not to work there to begin with. That is how i always felt. I have seen men working for Christian Schools that never made any sense to me that you would even want to work there. I have situations back in the 90s where i transferred because i didnt want to work in an area that is what the military when there was a ban against gays in the military. Some adults with some and th i turned down other things when i retired because, you know, i didnt the values that they had didn match mine and it probably made them wonder what was wrong. I just think somehow we have to think about why people believe the things they do as well as simply look at the constitutional legalism is a practical question. The understand why people hold what they do and work through that more than they do. I worked for the just wait institution and i think i should go to work for the institution if im going to be deeply offended by the notion. Im actually not in agreement with some of my jewish colleagues interpretation of the mission, that i have no problem with the mission itself. By the same token i i have a lot of quaties about working for the State University but that is a decision that i have to make when i decided that we work for a company or not. You mean you dont want tobe paid in money that is fairly drifting in the and the taxpayers blood . [laughter] i do have to admit i was a criminal prosecutor in chicago and i was paid the money to protect the public from the bad guys. Lets take one more question back here before we brk for lunch. It is symbolic of moderator has his lastame and one of the jurists is randy that there are some other points that are misunderstood. And that is the purchase or the updating of the contraceptives isnt free. It is factored into the cost of health insurance. If you dont pay your taxes, you go to jail but not if y dont your hospital or dr. s bills. And the her point that was omitted from the act is the cost of United States versus the cost of the medications in canada and western europe or england. It was a celebrate about it but they were obtained through a british company. As luck would have it i wrote a long policy on the importation of drugs from the pharmaceuticals between what is paid in the other price control countries. In any event do either of you wish to address that issue . Contraception are not or not a very good fit with an insurance. Insurance isagainst the risk of things happening that you hope will not happen but its somewhat foreseeable that you will get sicbut you hope you dont and you get insurance in case you do. Generally speaking, it isnt the nd of thing that is really something oe in church against. By mandating the coverage which is now a mandating more essentially mandating the redistribution of income from people who dont use contraceptives to people that do use contraceptives and obviously theres a lot of redistribution that happens in the country as a result of the federal law but i think that calling insurance is a misnomer. And that euphemism that is used to cover this is a social insurance. You put the term social in front of another term and it changes the basic meaning of the term but its in front of the episode is no longer insurance for insurance game so that is mething obamacare gave us into this goes back to the earlier point until obamacare was passed and it started having all these mandates. Thats what put us back into the suit where we t to figure out what are we going to do and how does that intsect with our individual rights that we have. And this is a good example of that. Disagree with that. The reason the congress wanted the care covered is because it cover this because it seems the insurance compies traditionally had while they are insuring against the risk that that left things the American People need to stay healthy uncovered and the idea behind this particur regulation was to ensure the Preventative Care and to insure that they could access the full range of contraceptives including some of the most effective ones that are extremely cotly and it couldnt be obtained and to me that is classic reason for insurance. So i dont think that this is some kind of new insurance using its authority and here it is regulating the terms and conditions of employmenthich is the kind of thing to ensure that they have access to a full range of contraceptives and i think the court should cognize it. It is an old welfare scheme and its just been disguised as insurance. There is nothing new about having a welfare scheme. It is just under the rubric of insurance and so there doesnt have to be line item on the budget in which the redistribution is taken. This is about the systethat is more boad. You dont file a claim with your Insurance Company when you get a minor fender bender you look at what the deductible is and what your plan is and catastrophic care. It doesnt help you pay for expensive things. It helps you cover the risks that would otherwise. And it kind of smooths out the risk portfolio as it were into since weont have a real market for health. Keeps getting distorted in other ways this is one other way of redistributing from one section or one category of people to another but also to the change to further pervert the insurance to something that is a public utility scheme. This book haa wealth of ideas and about this matter and you will get a much fuller systematic accounting of the issues in the book. Lets break for lunch but lets join and go up to the secondfloor to the Conference Center for lunch. Before we do a warm round of applause for the speakers. [applause]