Transcripts For CSPAN2 Book Discussion On Religious Liberties For Corporations 20150124

[inaudible conversations] finish good afternoon. Welcome to the Cato Institute. Im roger pilon the director for constitutional studies and your host for this event. I want also to welcome our cspan audience and those of us those who are looking at the event on cato Live 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 modern Business Corporation pursuant to both statutory and constitutional law. More immediately, were here also to mark the publication of a new book on that subject from palgrave religious liberties for corporations, and i note the title ends with a question mark. In the book our two main speakers today ilya shapiro and david gans provide a comprehensive analysis of thish shoes in burwell very can issues in burwell v. Hobby lobby in the blockbuster decision the Supreme Court rejected the obamacare regulation that proviewedded employersponsored Health Care Plans to provide which required employersponsored Health Care Plans to provide free contraceptive coverage. The book is based on the theories the series of debates between ilya and david that took place earlier this year at National Constitution center in philadelphia moderated by Center President jeffrey rosen. In those debates and in this book, our posing advocates exam whether Forprofit Corporations can assert religious liberty exercise claims under federal law, whether businesses or their owners directors or officers with religious objections should be exempt from coverage requirements and what the implications are now that the Supreme Court has ruled in favor of hobby lobby. More fundamentally still is a question that i hope theyll address along the way; namely whether the government whether religious liberty has become an exception to government rule needing to be justified case by case or whether instead under a properlyread constitution it is government rule that has to be justified. To debate these issues, our two speakers will have 12 minutes each starting with ilya after which theyll talk three minutes each to respond. Well then turn to professor Randy Barnett for a 15 minute commentary before we turn to you, our audience, for questions. So let me now introduce our two main speakers, and ill give them very brief introductions. And ill introduce randy just before he speaks. Ilyas a senior fellow in constitutional studies here at the Cato Institute and editorinchief of the cato Supreme Court review. He contributes to a variety of academic, popular and professional publications and regularly provides media commentary including an appearance on the colbert report. Hes provided testimony to congress and state legislatures and has filed more than a hundred frend of the court briefs friend of the court briefs in the Supreme Court. Before joining cato, ilya was special assistant adviser to the Multinational Force in iraq and litigated at two large law firms. David gans is the director of the human rights, civil rights and Citizenship Program at the Constitutional Accountability Center. Hes the author of numerous scholarly works on constitutions text and history including the centers text and history narrative series. He regularly participates in Supreme Court litigation. He joined the center after serving as Program Director of the cardoza law schools nor schumer center for constitutional democracy and as an attorney with the Brennan Center for justice at nyu school of law. So we will begin with ilya shapiro. Please welcome hum. Thank you. [applause] well thanks very much everyone, for coming and those of you in cspan land for watching. I hope youre enjoying your insomnia at three in the morning. [laughter] so by now everyone here has heard that the Supreme Court ruled that corporations can fire women who use Birth Control and that religion trumps all other values and constitutional discourse. At least thats what my twitter feed told me when the Supreme Court decision in burwell v. Hobby lobby came down. Actually, the case had nothing to do with the power of big business the freedom to use any kind of contraceptive or how to balance religious liberty against other constitutional concerns. Hobby lobby was actually a straightforward question of statutory interpretation regarding whether the government was justified in this particular case in overriding religious liberties. The Supreme Court ruled, as roger said, that closelyheld corporations cant be forced to pay for all of their employees contraceptives if doing so would violate their religious beliefs. So there was no constitutional decision no expansion of corporate rights and no weighing of the religion versus the right to use Birth Control. But lets unpack that. Lets step back for a second. So department of health and Human Services included 20 contraceptives as part of its minimum essential coverage that all insurance plans had to have to satisfy the obamacare employer mandate. Through interpreting that requirement from the legislation, all that the legislation said was you have to cover Preventive Care. And in the the course of interpreting that they listed 20 contraceptives. Included among those were four to which certain religious employers or people who ran businesses both forprofit and nonprofit around the country objected. These tended to be pills and other devices iuds, morning after pills that work in part by preventing fertilized eggs from implanting, and people object to this on religious grounds including david and barbara green, the founders and owners of the arts and craft emporium hobby lobby. Ive actually never been to a hobby lobby, but they consider it part of their christian duties to provide Good Health Care to their employees, but they also object to these various these four items on the list of 20. But not complying with the mandate would have meant 1. 3 million in daily fines. So the greens both on their own behalf and through their corporate entity hobby lobby, sued the government both under the First Amendment but more importantly, under the religious freedom restoration act of 1993. Now, its a curious statute. It calls for kind of narrow, casebycase adjudication of religious objections to Government Actions. It was passed unanimously in the house in and 973 in the senate and signed by president clinton in 93. Its lead sponsors included chuck schumer, then in the house and ted ken key in the senate. And these religious zealots intent was to reverse a 1990 Supreme Court ruling by that heretical justice, antonin scalia, that approved the constitutionality of generallyapplicable laws that burden religion so long as they didnt specifically intend to discriminate against religious people. That is, if objectors wanted an exemption, they would have to take it from the legislature not from the courts. Now, courts are supposed to look at, first, whether the Government Action at issue actually imposes a significant burden on religious exrs. If it exercise. If it does, then the government must show it nevertheless is pursuing a compelling interest and is using the least restrictive means of achieving that interest. The burden here is clear, the government didnt even contest there was substantial burden on the greens on hobby lobby. The court ultimately assumed that the governments asserted interest was compelling. And by the way, the way that the federal government litigated this case was curious. It didnt say there was a compelling interest in free contraceptives or Something Like that. All they said was Public Health and gender equality, very kind of broad interests that generally are held to be too vague when youre trying to satisfy whats effectively strict scrutiny by the courts. And, indeed some lower courts ruled against the government on that basis, that their asserted interest wasnt compelling because its too vague. Its kind of like saying our interest is in good public policy. Nevertheless, the Supreme Court just assumed that interest was compelling, so the case came down to that third bit whether this was the contraceptive mandate was the least restrictive means of achieving the governments goal. And thats where the government lost, because it simply did not show, could not show that there was no way to provide free or cheap Birth Control without burdening believers. For example the government could pay for the contraceptives itself or apply tax credits or make the kind of regulatory accommodations that it offered through nonprofit organizations, some of which are still litigating some of these accommodations. But, again none of these sorts of things were offered to the forprofit businesses. Some of these religious groups by the way some of the nonprofits, one of them is called Little Sisters of the poor. Any of you who are budding plaintiffs lawyers, i suggest you get them to be your lead plaintiff in any case you file on any subject. [laughter] so instead health and Human Services just chose to continue forcing people to do its bidding, and the court said, you know, you dont have to do that. You can achieve your goal in some other way. So nobodys been denied access to contraceptives. Everyone whos, you know women can still buy acquire whatever legal products they could before and theres now more freedom for all americans to live their lives how they want without checking their conscience at the office door. Instead this was just a mandate that was a rightbusting government compulsion that didnt have sufficient justification. Now, before i sit down and end this explanation of a rather simple case, i guess i should address the hubbub about corporate rights. After all, the title of our book and of our event today is religious liberties for corporations which i really think is an academic exercise regarding, you know, how many mandates can dance on the head of a beleaguered citizen. Because, after all, as catos brief described it doesnt really matter whether you lawyer up your argument, your claim in terms of the corporation asserting it or the founders, the owners. At least in a closelyheld corporation, certainly, and i guess you could theoretically think of a publiclyheld corporation as well where the interests are all aligned, its the people whose beliefs that are being impinged or out of whose pocketbook, ultimately the fine would be paid. So i think it really doesnt matter. Now specifically on the legal merits of riff rah, it technically applies to all persons which is a legal term that unless congress specifies otherwise includes nonhuman entities. But a Forprofit Corporation cant really exercise religion, can it . I mean its kind of ridiculous, its like applying the term person to a statute about abortion or the death penalty. Its nonsensical. Well, its true that hobby lobby doesnt pray or have a soul to save it doesnt even have knees to pray on, right . But its hard to say it doesnt operate according to certain religious ideals. It closes on sundays, it doesnt sell shot grasses, it takes out glasses, it takes out ads importuning readers to seek jesus, it refuses to backhaul beer on its trucks one way that retailers make a lot of profits is when their trucks go out with their merchandise, when they come back theyre empty but theyll haul other stuff including, most lucratively beer. Hobby lobby does not do that, forgoing considerable profits. But neither the profit motive nor the Business Structure change anything because modern law uniformly around the country and every state lets corporations pursue every lawful purchase. They dont just have to pursue the bottom line. Indeed Corporate Social Responsibility is a trendy well, its been trendy for 10 or 15 years or more. Starbucks, you know, has father trade coffee and chipotle and whole foods care about the sourcing of their organic freerange meat, and google says dont be e absolutely. Lots of organizations evil. Lots of organizations, lots of business organizations have all sorts of ethical systems according to which they pursue their mission, and theres nothing really unusual about that. I dont think that ethical system being religious means that its subject to less protection. None of these considerations undermine rfras solicitude for the rights of humans including owners offices and shareholders. As Justice Alito said for the majority, protecting the free exercise rights of corporations protects the religious liberty of the humans who own and control these companies. Indeed associational rights flow from the individuals, from the individual rights of the people who make up the groups to which we attribute those rights. Those groups, corporations, partnerships unions, fraternal organizations, political advocacy groups, a bunch of buddies playing poker, this is not a controversial statement. Didnt even start with Citizens United right . Which freed up independent political speech for all sorts of associations including corporations and unions. For a long, long time, we have understood that corporations and other associational groups have rights. If they didnt, then the police could storm the offices of ibm and take all their computers, because theres no Fourth Amendment right there. Or the mayor of new york can say he really likes Rockefeller Center and wants to move his office there and just take it without paying just compensation, in violation of the fifth amendment. So Corporation Structure really doesnt matter. It seems kind offed to say that as an of odd to say. Of course, we have jewish and muslim butchers who for their profit motive according to religious beliefs. Indeed one of the coplaintiffs of hobby lobby was a christian bookstore. Theyre in it to make a book, but theyre selling exclusively christian literature. So lets put this corporations are people misdirection to rest. At least for closelyheld companies, if you pierce their corporate veils, its their owners who will bleed. I share the practical skepticism that a pluckilytraded company publiclytraded company, a fortune 500 company, say, could align all of its stakeholders to assert a rfra claim, but if hobby lobby went public tomorrow and in all of its investor memoranda it laid out clearly how it pursued its buzz wasnt defrauding anyone i dont suppose there would be anything wrong with that. Here the First Amendment protects free speech, free exercise not certain speakers here in the Citizens United context, and people dont can lose their rights, First Amendment, rfra or otherwise when they get together. But the larger conclusion to draw here and this is getting to what roger said, he was hopeful that hed get to is that the essence of freedom is that government cant willynilly force people to do things that violate their consciences. Now, some may argue theres a conflict here between religious freedom and womens freedom or womens rights but thats a false choice as the president likes to say. Without this rule again women are still free to obtain contraceptives, abortions and whatever else isnt illegal. They cant force their employer to pay for it and, you know if hobby lobbys e employees were all of a sudden not having access to contra contraceptives i think we would have heard about it by now. While the focus of the mandate cases is the center, theres a bigger issue here. This is just the latest example of the difficulties inherent in turning health care or, increasingly our economy more broadly, over to the government. When something is socialized or treated as a public utility, were forced to fight for every carveout of liberty, as roger himself has written during this debate. The more government controls whether health care, education or even marriage the greater the battle over conflicting values. I call this process hobby lobification. Ill be writing about it more in coming months. With certain things such as National Defense or basic infrastructure and other real public goods, we largely agree at least inside reasonable margins. But we have vast disagreements about social programs economic regulation and so much else that government now dominates at the expense of individual liberty. So those who supported hobby lobby before the court are rightly concerned that people are being forced to do what their religious beliefs prohibit. But that all comes collectivized territory. Thanks. [applause] thanks so much, and thank you for, cato for putting on this fabulous event. Its really a pleasure to be, you know sharing the stage with ilya, with ray barnett, with roger who sometimes we agree, sometimes we disagree, but we always kind of start from First Principles and look at the constitutions text and history. So ilya sort of told the story that hobby lobby was with, you know applying a statute, using casebycase adjudication. I sort of want to start by this case marks first time in the nations history that the Supreme Court has given Forprofit Corporations religious free exercise rights and, in the end its quite important, accorded them religious exemptions from general business regulation. Now, its rare when youre talking about the Supreme Court to say this is the first time something that is happened that the Supreme Court has said. You can do it, you can look at instances in the recent past like heller the gun case but its very rare to say this is the first time the Supreme Court has said corporations have this right in more than 200 years, um, of our nations history. But hobby lobby is big news because it does say for the first time in the our nations history secular, Forprofit Corporation are entitled to religious free exercise rights and are entitled to seek exemptionings from are general Business Laws exemptions from general business law. And as ilya said, its kind of a casebycase method. Theres no concrete limiting principle in place that can say well, these people dont get exemptions but these people do. And this really marks a huge shift from the prior free exercise law that existed at any time in the last 200 years. And i guess one of the things is we have to see whats going to happen. Will the court give businesses religious exemptions from antidiscrimination laws . Well, you know, i dont think the courts opinion really answers that question. It says perhaps they will be giving them in the race context but gender, Sexual Orientation, those are up for grabs. And to me, theres kind of three pig big things big things that are going on in hobby lobby. I want to focus on those, and then ill sort of turn to rfra, because at the end of the day, its a rfra case, and i want to address ilyas argument. So what are the things going on . So first, as i started with this is a major expansion in the rights of corporations, and ilya has [inaudible] a little bit, but at the end of the day for the first time in the history the court has extended religious free inters rights enterprise rights to secular, Forprofit Corporations. So that is a big deal. And i think too and whats really important is the kind of exemptions theyve been accorded. And it exalts the powers of corporations over their employees. It allows corporate ceos to to impose their religious beliefs on their employees and to deny them federal rights. And thats a very troubling kind of exemption. I think thats really a very big part of the hobby lobby story and why myself and others think the court is going in the wrong direction. You know, so let me try and say a little bit about each of those, and then ill try and address ilyas point. So although hobby lobbys a statutory case, you know this book is about addressing the larger issues, so i want to start with the text and history of the constitution. And, you know i think what were seeing in hobby lobby and perhaps other constitutional cases like Citizens United, ilya mentioned, is the Roberts Court taking us further and further away from the basic founding, understanding about the rights of corporations. When the constitution was founded, it was very clear to the founding generation that corporations were not a part of the we, the people, and giving them equal rights would be harmful to the American People. During debates over the bill of rights, James Madison talked about extending to individual americans the great rights of mankind. But when it came to even mentioning corporations in the constitution, the framers were extremely worried about doing so. There was a big debate about the founding over should we give the federal government the power to create a corporation. And the framers said no, we dont want to create that power and they were worried about making corporations artificial entities, not at their core, into hugely powerful entities. And they specifically declined to mention corporations in the constitution. Now, we have spent 900 year 200 years of wrestling with how do we treat corporations given the fact that individuals come together, and they form corporations to most of the time not all the time to be profitable in the business world. And we give them special privileges to make them extremely useful at that. So they have some rights, and most of those rights are connected to commerce and property but they dont have all the rights. So the book discusses this at lengths, one of the areas the Supreme Court has said corporations dont have the same rights as individuals. Notwithstanding what ilya has said that corporations are owned and run by individuals, they dont have the right to selfincriminate, to be protected against selfincrimination, and heres what the court recognized in those cases is that right is essentially, a right about constance and about human dignity, and it would be improper to extend that to corporations. And i think the same thing is true when we talk about religious liberty. When you, you know, when i started this and i looked back at what did the framers say about religious liberty and the founding generation understood it as a fundamental human right that was rooted in freedom of conscience and human dignity, these human characteristics, and if youing loot a if you look at madisons iconic writings in virginia, he talked about over and over with reason, with conscience, with conviction these make little sense as applied to secular, Forprofit Corporations like hobby lobby who cant tell you and dont exercise religious [inaudible] in a meaningful sense of the world. Now, of course hobby lobbys owners have deeply held religious beliefs, and i think everyone recognizes that, but theres a fundamental difference between the owners and the corporation, and the whole point of forming the corporation is to transform a set of individuals into a different entity with different rights responsibilities and obligations. And what i find troubling and sort of wrong about the ruling in hobby lobby is that it allows corporations like hobby lobby to have their cake and eat it too. So when owners are sued, the owners say, well, were not on the hook were protected. But here when it deals with a claim that the corporation must pend money, they say, oh, no, thats us. Thats not the corporation. So, you know corporations shouldnt be able to go back and forth from corporate to individual status to gain the benefits of both. You know, whats most significant, i think about this ruling is maybe less the formal question of can a corporation invoke religious freedom, but the question of according them religious exemptions. And whats really significant here is the court has done something that the Supreme Court has never done in the past. And you can look at, you can look back throughout American History. The book starts with claims made by jewish merchants which started in the early 19th century, didnt reach the court until the 1960s in the [inaudible] case. There was a case in the 1980s involving the amish. There was also a kind of fundamental precedent about the meaning of the free exercise clause. All those cases we have businesses not unlike the greens who said we want to run this religion according to our basic faith. And in all those cases, in fact, every case that came before it, the court said youre not entitled to religious exemption. And, you know sort of case after case throughout American History even when youre dealing with Business Owners, not corporations the court said youre not entitled to this exemption. And hobby lobby really opens the door to a new set of claims for religious exemptions. And whats most troubling is it exalts the rights of the corporations over those employees. And it gives, it gives the owners the right to impose their religious beliefs on their employees and deny them federal rights. And in this case its the right to Insurance Coverage that includes contraception coverage. And without this coverage, employees who have deeply held convictions of their own wont be able to afford some of the most effective forms of contraception. And this really, to me in this turns religious liberty on its head and gives employers a tremendous power of employees. Employees shouldnt have to protect their personal dignity at the check their personal dignity at the workplace door. Now, ilyas focused a lot on rfra, and i just want to end and i know my time is running short by noting rfra was a decision that, as ilya said overturned a Supreme Court ruling that said the law never requires religious accommodation. But history before that was the court said sometimes the First Amendment requires a religious exemption, but most of the time the court objected claims for religious exemptions. And they rejected claims for religious exemptions brought by Business Owners. And to me, the can case that was most relevant and should have been followed was the case involving the amish and the amish business opener asked for religious owner asked for religious exemption for making Social Security penalties. The court said youre not that was the precedent that was most on point and should have been followed. If the court had respected that they would have upheld it under the standard that thats applied. Okay well, ill you can add out [inaudible] [applause] ill ya, three minutes. Ilya with, three minutes. And david gets four when he comes back. Davids real problem here is with rfra. Not just davids anyone who doesnt like the results in hobby lobby. Because r finishing ras standard is quite clear; is there a substantial burden to a sincerelyheld religious belief, so kind of contextual ones that are made up like people who are arrested for marijuana distribution claim to be part of the church of marijuana and things like those cases have failed. Whether theres a compelling interest and whether theres any other means to achieve it. Be thats not the right if thats not the right way to balance religious objections to generallyapplicable lays, then then laws, then rfra should be changed or abolished. Senator patty murray, i think, was the lead sponsor of the get your boss out of my business act that didnt go anywhere. But thats the way that rfra works. Or davids problem, perhaps is with obamacare itself or with the way that the the president of health and Human Services interpreted it that the department of health and Human Services interpreted it or in the way that the department of justice acted in not extending certain accommodations to forprofit businesses that objected, but only certain kind of nonprofits. At each of those stages the writing of obamacare its implementation in terms of its regulations and the accommodations given by the justice department, each of those steps the government could have made this case go away. But, no. More important than providing employees or women generally with free contraceptives or gender equality or whatever theyre asserting is more important than all of that is forcing people to bend to the will of what the government dictates is the correct view of things. Thats the real problem here. Is there a limiting principle . Sure. If theres no substantial burden, its case by case. If theres no substantial burden, you lose. If the government has a compelling interest, that is theres no other way to achieve it you lose. Like antidiscrimination laws. Now, assuming antidiscrimination laws as applied to private businesses are constitutional in the first place we at cato, of course, have some qualms about that but assuming theyre constitutional, theres no other way of achieving the goal, the compelling interest of not having private employers discriminate against people than to say you cant discriminate. So a challenge on religious grounds has to fail. Social security payments. There is no other way for the government to achieve its goal of everyone paying for each others retirement in this sort of ponzi scheme manner than to actually talk the money from the different people. You cant provide a public clinic because its a different thing. Its a different issue that were talking about with the contraceptive mandate. And so ultimately again, the issue of corporate rights by the way is a very small one, and the court didnt talk much time on it. The vote on that was 52. Justices kagan and breyer didnt field the need to opine feel the need to opine one way or the other, and the reason why a corporate right was found to be in this way at this time is because of the hhs mandate thats so rare and unprecedented to force people to bend their religious beliefs to the will of the government for no particular reason. Thanks. [applause] so ilya says my problem is rfra, and i just, i cant accept rfra. But, you know i think what ilya misses and what the court distorted was what rfra was all about. It was about creating a balance between the right of individuals to seek religious exemptions and statutes a path neutrally, generallyapplicable statutes that apply to the religious and nonreligious alike. And the law prior to rfra was only a very small number of claims for religious exemptionings were mandated. Exemptions were mandated. And what the court has done quite consciously is to create a new body of First Amendment law that has no roots really in any law that has existed since our nation was founded, you know . Ilya has sort of said well the governments interests were so vague. They werent vague, they were about insuring that women cannot have access to the full range of contraceptives. So one of the most effective of and most expensive forms of contraception, the iud is the one that hobby lobby said we dont want to pay for. And that means if youre a hard working woman and you depend on insurance to insure that you have access to a full range of contraceptives you wont be able to achieve it. You wont be able to possess obtain those contraceptives and control your life. And this is the way in which the exemption that theyve granted allows the ownerses of hobby lobby to impose on their individual employees their religious beliefs. And if you look at, if you look and take seriously the body of law that rfra was designed to restore as its text makes plain, that kind of exemption wasnt proper. Now, you can look at it, was this narrowly tailored . Ill yas sort of saying well, the government can say. But by that solution, the amish owner should have won. You can say, well, the government can just make up any Social Security payment, you know . That solution kind of destroys the balance that is supported by two centuries of law dealing with the First Amendment. And so i think the court has really gone off the rails in how its construed rfra that breaks from founding understandings and sort of two centuries of First Amendment law. You know and in terms of, well, what about extending the accommodation, of course, ilya mentioneds the Little Sisters of the poor who are actively challenged the court. Now under attack, and the justices didnt say, you know we dont think those challenges will succeed. In fact, were going to leave them open, and in the day after the Wheaton College order, they made it sound like well, those claims seem like theyre pretty good ones. So on the basis of the this narrower accommodation by giving corporations, giving businesses rights that have long been given to churches, you know, i dont think that really works when you havent even accepted the legality of that accommodation. So i think if the court had applied rfra against the backdrop of the law it was designed to restore, it would have recognized this was an accommodation that shouldnt have been granted because its in derogation of the rights of the employees. And i think four justices got it right when they, when they head that point in what was i think, a brilliant dissent by Justice Ginsburg. Thank you. [applause] all right. Now were going to hear a roughly 15 minute response from professor Randy Barnett. When i said that i would give our speakers a brief introduction, i had randy in mind. I want to leave time for his talk. Because i could go on at great length with his introduction. He is the waterhouse professor of legal theory at the Georgetown University law center where he directs the Georgetown Center for the constitution and teaches constitutional law and contracts. Hes the author of many books and countless legal articles. Among his books are restoring the lost constitution the presumption of liberty, which plays into question that i last posed in my introductory remarks. Also constitutional law cases in context, which treats the constitution historically unlike most conlaw case books and contracts cases and doctrine. Most important for our purposes here today randy took the lead in crafting the legal challenges that brought obamacare before the Supreme Court in 2012. Please welcome Randy Barnett. [applause] well its great to be back at the hayek auditorium and the Cato Institute with all my friends. I should probably disclose at the outset that i agree with ilya entirely here in this debate, but i dont think that my role today is to pile on and to make this a twoonone debate. The way, for example, Harvard Law School did when they invited me to debate both charles freed and larry [inaudible] on the constitutionality of the thats what harvard thought was a fair fight. Maybe they were right about that, im not sure. [laughter] i think it takes at least six harvard law professors to take you on randy. There you go. But i should also disclose that im a big fan of davids and what the Constitutional Accountability Center is trying to do, which is offer text and history on behalf of progressive constitutional outcomes. Indeed, the cac filed an amicus brief on behalf of me and several other constitutional law scholars in the mcdonald case contending that the individual right to keep and bear arms was protected by state from state infringement by the privileges or immunities clauses of the 14th amendment. So weve worked together. However, before i offer some observations that i hope will be clarifying to the debate, i want to briefly version that i not only stress that i not only agree with ilyas conclusions, but also the justifications that he offers for them. The right to freely exercise ones religion is a natural right, possessed by individuals, and the free exercise of religion involves conduct not just belief. Republican governments are blushed to secure the established to secure the preexisting rights of individuals, including this one. Individuals do not lose their rights when they join together to act collectively or to make a profit. Nothing compels states to enact General Corporation statutes that enable individuals to limit their liability in various ways, but governments that do this cannot justly deprive these individuals of their sovereign rights because theyve chosen the use the corporate form or because they associate in hopes of making a profit. Now, of course, whether or not persons who control corporations are, in fact, exercising their right to practice their religion is a question that must be resolved before you can reach a conclusion about a particular about whether a particular legal regulation is restricting that right. It is hard to see how managements of walmart or apple are engaged in the way the management of hobby lobby is. And i also agree that the religious freedom restoration act makes the case a pretty easy one on statutory grounds. But instead of further arguing on behalf of these conclusions i want to pull back from this particular dispute to make some general observations about why were having this argument. Had Congress Held to the original meaning of the constitution, the Affordable Care act would have been unconstitutional because it exceeded congress enumerated power under the original meaning of the Commerce Clause even when combined with the original meaning of the necessary and proper clause. So if the original meaning of the constitution were being followed, there would be no need to reach the First Amendment free exercise claim. And this was true as well in the lopez, the case of lopez v. United states. Because the court held that congress had exceeded its enumerated powers you should the Commerce Clause when it enacted a ban that, on possessing guns within a thousand feet of a school, it was unnecessary in that case to consider whether a ban might also violate an individual right to keep and bear arms. And lopez was decided, you may recall, before the Supreme Court in heller had recognized that the Second Amendment does protect an individual right. What this shows is how the enumerated powers scheme is a way to protect the natural background rights and liberties of the people white without having to identify and specially protect these rights per se. And the hobby lobby case illustrates that once the enumerated powers is breached the court must confront the due process clauses of the 5th and 14th amendments. And, in my view, it is the due process clauses that authorize courts to assess whether a particular deprivation of life, liberty or property is one of the enumerated background rights, privileges or immunities that are retained by the people. While the First Amendment enumerates the rights of speech press, assembly and the right to freely exercise ones religion, it is the due process clauses that recognize the role of courts in protecting these rights by infringement from infringement by congress or by state legislatures. So every First Amendment claim is also, in fact, in my view a due process clause claim. In short given the end or the refusal to acknowledge the enumerated powers of congress we are living in a constitutional world of second best in which we fall back on analysis of fundamental rights because first line of defending the inherent rights of the people that is, the structural constraints of the constitution has already been breached. In this way, we can view the structural constraints of the constitution, including the fact that the powers of congress are supposed to be limited to those enumerated in the constitution as functioning like the structure of a ship that is designed to keep the vessel afloat and preserve the life, liberty or property of the passengers. And the rights that are protected by the due process clauses are like the lifeboats on the ship to which you prepare to preserve ones life, liberty or property when the structure of the ship itself has been breached. At the time of the founding and despite the assurances of the framers, the public refused to get onboard the constitutional ship until the framers promised to install the lifeboats by adding constitutional amendments expressly protecting the rights retained by the people. So my first point here is that we would not be discussing the First Amendment rights of the people who have chosen to organize and associate in the corporate form were the original meaning of the whole constitution currently being respected by congress and by the Supreme Court. We are in a world of second best. We are staying afloat as a free society in part by relying on the lifeboats that have been provided by the bill of rights. Now, my second general point is that in this constitutional world of second best in which the powers of congress are thought to be so broad as to be nearly though not quite, unlimited the court has been forced to devise carveouts or exceptions to these general powers. Argos doctrine has been devised precisely to compensate for the fundamental mistake of overriding the internal limits on congresss enumerated powers, by internal limits i mean the scope of the power itself rather than worry whether they also violate rights. So these are abouts bring us closer to the result that would be reached by the original meaning of the constitution as the hole that would occur in their absence and that is what i mean by the fact the we are living in a world of secondbest, constitutional world of secondbest. This way of framing the issue does not resolve the debate whether for profit corporations have free exercise right the does explain why what looks like historical special rights or ahistorical special rights or, abouts are the second best means by which the life, liberty or property of all persons are protected from regulations that would otherwise be protected by Holding Congress to its limited and enumerated powers. With this in mind we concede the limitations of employing the original meaning of the due process clause, equal protection clause of free exercise of religion in a constitutional regime that does not huge to the original meaning of commerce among several states. Combining buthistorical construction of federal power with narrow and precise original meaning of the protection of life liberty and property can yield a result that is more removed from the constitution is supposed to operate, the rights privileges or in unities of sovereign people considered individuals. Before concluding i want to offer another distinction that will clarify the debate between david gans and ilya shapiro. The meaning of the text of the constitution is one thing. How that meaning is given legal effect by the courts is another. Socalled new regionalist i consider myself one, all the activity of the entertaining of the meaning of the text constitutional interpretation. When you try to figure out what the constitutional means you are engaged in interpretation. Bent they call the activity of giving that meaning legal effect constitutional construction. When it comes to constitutional interpretation regionalist think the meaning of the constitution remains the same or should remain the same until properly changed. The meaning should remain the same until properly changed. Bose david and ilya shapiro agree. This is the proposition to which the Constitutional Accountability Center has committed itself. Given the original meaning of the text of legal affect by adopting constitutional constructionists we are no longer engage in the meaning of the text we devise implementing doctrines. They would supply the meeting to particular facts. I offered this distinction, when we answer questions, they have free exercise rights that are thought of as being held by individuals to have chosen to organize themselves in corporate form. Or the question even whether smith or sherpa to which they talk about in their book were the most faithful to the regional meaning of the text. We are trying to devise administrable doctrines. We call them implementing rules that are most faithful to the letter and spirit of the constitution, most engage in countries constitutional interpretation proper. And a great many instances such questions of application or implementation are not matters that are capable of being resolved directly by the original meaning of the text. Trying to figure out how this original meaning is best given. Such auctions evolve over time even as the original meaning of the constitution remains fixed. As they encounter new situations that are not clearly was all for best results by previous doctrine. In this way constitutional construction takes on attributes of common law process that can be described as a living constitution but is more accurately conceived of as living constitutional law. The law evolves not the constitution itself. Let me conclude what i should have said at the start ilya shapiro and david ganss little book is simply marvelous. I dont think i have ever read a clear exposition of a difficult constitutional and statutory controversy in a manner that renders it so understandable to non lawyers and yet the entirely legally accurate and precise. This is a tribute to both of these advocates each of whom made the best case for his own position. You just got a taste of it this morning without ever stooping to distort the arguments of his opponent. I admit to be slightly in awe of both of your performances here in this book and i am not known to offer such praise lately. The constitution Accountability Center indicate institute should both be proud, should be both proud and grateful to have such bright, skillful and principal lawyers working for them and it is a tribute to jeff rosen and the National Constitution center of philadelphia for producing a serious legal argument in a manner that can be appreciated by the educated public and educated general public. This bodes very well for his tenure as head of that important institution. If you have interest in issues raised by the hobby lobby case i am talking you out there and the decision i cannot more strongly recommend this book to you. Buy it, read it or forever hold your peace. [applause] let me pick up on the last remarks, you get a much richer discussion in this book. Before we open up for questions from the audience let me offer david chance to respond to what i take to be argument that the difficulty you had in finding president s for the reason you found this so novel what the Supreme Court did is in affect it didnt come up before. Be government for most of our history wasnt issuing statutes like obamacare to raise the question of ordering people to perform acts that violated their religious convictions. That mean reason why you were able unable to come up with more president s for this kind of right. I dont think that is a fair characterization. If you go back through American History, debate its of the kind that we have started not long after the founding and this tension between if you are an individual, the issue of corp. If you are an individual with religious belief, does that make yourself, allows you to frame an exemption no one else can. The first cases involving Business Owner is came out of pennsylvania in the first years of the nineteenth century. This debate for Business Owners who have a religious view and want to run their business in accord with that should they be entitled to exemption from generally mutually applicable laws that apply to all at has been an issue that has been confronted throughout American History. Many of the biggest cases that are discussed deal with states. The United States versus lee case was a huge president in hobby lobby that ilya shapiro and i debated many times and justice of the know and Justice Ginsburg debated many times 1982 case involving a request for exemption from the Social Security act. This issue is one that you see throughout American History and sometimes it happens on the federal level and sometimes on the state level and you can look at the body of the Supreme Court dealing with rights of corporations and there are any enormous number of cases, many not quite obscure but going back to the early days of the nation some of them, many of them deal with action on the state level because the states because the framers did not want to give the government the power, state and a lot of the work. A lot of the early cases, and involved state regulation of dartmouth charter on the claim that they violated the constitution because they violated article 1 section can, protection against in their mental obligations. There have been cases over and over, it is the mark of how hobby lobby, speaking on this issue, for the first time it is not a constitutional case but you read ilya shapiro, just as anita says many of the things ilya shapiro says and in some ways within a constitutional framework. So saying this is statutory sort of doesnt do justice to what is a fundamental debate and there it is. Essentially david is arguing the obama legislation by virtue of being federal was the anomaly in the historical sweep but these issues came up so much more often at the state level under the police level. I wasnt making the argument you attributed to me so i will let you defend yourself from david. But i will say things did change with the passage of the fourteenth amendment that gave federal courts for the first time jurisdiction to protect liberties of the people a of state governments it was very lower. And using the fourteenth amendment as they should have been using it to protect individual liberties after the setback provided by the slaughterhouse cases which started in the 20th century. That is how the Supreme Court used the First Amendment. And the postmaster general. This was late developing, not surprising you wouldnt have a lot of early precedent like that. We have a different take on the original meaning of the Commerce Clause. We filed a brief in the Health Care Case on behalf of state legislature and made an argument that is rooted in the constitution. You will not her is that now because i would take to that we would need another hourandahalf to do that. I should clarify my earlier point. We never made an original challenge. Challenge to the Affordable Care act was never based on the constitution. That was out of the question. We couldnt argue that and win. We made an argument based on existing precedent did this was an unprecedented exercise of federal power that could not be justified because there was no the bidding principal. To uphold this act would be to basically give Congress Police power which the court has said congress doesnt have. We were not making an original argument. Today i am making the claim the hole Affordable Care act would violate the regional meeting of the constitution and if the regional meeting was respected you would never have to reach the First Amendment question of free exercise. Lets turn to you folks and wait for the microphone to come. Tell us your name and any affiliation you may have. I will direct one side when you are asking the question and the microphones of peter hanson up. Lets start right here. And then right there. The heritage foundation. I really appreciated the stock. It was very helpful and i have a book as well. Quick comment and a quick question. The comment is corporations cant pray. That is an impoverished view of prayer. I commit you to the medieval, to work is to pray. There is that. My question is, david gans said walmart couldnt possibly be hobby lobby is clearly a secular corp. And ilya shapiro said fortune 500 companies, it would be difficult to share their exercising religion. Can you two, youre grasping at trying to get a decision procedure perhaps which is maybe a pure with such values and determine when a corporation is exercising religion set aside the question whether it is religion or not but when did they get together and how many people does it take . What does it take to be considered closely held . Can you get to that issue . Sure. Accord didnt draw a line. If i was a lawyer advising a company that was organized along certain religious lines i would say if you dont have a mission statement, get one. I would say make clear what your policies are. The greens contingent this opposition to these particular methods of Birth Control once obamacare was passed. Nobody disputed that. They didnt manufacture some objection pursuant to litigation so those are the sorts of things course will look to. A wont look to evaluate some theological dispute whether it is the religious interpretation but they will look at whether you have a sincerely held belief and whether indeed the Government Action has substantial burden on it. I have two questions for david. The corporation at the founding, the meaning of the term and what founders thought about and i wonder how you rectify that with the fact there were no General Corporation statutes in any state until 1795, and corp. Meant something different, more like the state monopoly. Second question, when you send giving hobby lobby denying a federal right to the women employees can you describe what that right is and what it looks like after it gets through hhs and whether it has to go through your employer or not . On the first question, if you look at the sweep of American History there is a fundamental change in both what corporations do and how they are regulated. That changes overtime. What doesnt change is this fundamental idea that is reflected in the founding debates that there is a difference between corporations and we the people because corporations receive special privileges, might be different in a monopoly setting but even corporations receive special privileges good individual americans cant receive a. That is the defining aspect of a corporation. It is a broader latitude to regulate corporations than it does individuals. That is the principal reflected in history. And went to a chartered saying you, corporations at the government retains authority to ensure that corporations dont abuse the special privileges and that gives it a special regulatory latitude to. Certainly under state law which states have plenary power to regulate charter on the federal level is complicated the interaction with the scope of congresss federal powers which are broad but there are limits to them, but my general take is doesnt matter that the rates have had a move toward general corp. The principals told. The right as i understand it, that was reflected in the h h s regulations was employers have to provide, and certainly this still holds as to Public Corporations. If you have employees sponsored health plan and have to cover the full range of contraceptive including as well as other things that regulations provide for, there are new regulations that deal with both the hobby lobby situation as well as as well as the Little Sisters example and those are under challenge. The right is the same one that the court talked about. Professor of the school of business, the rather boost use of the word corp. Is what bothers me because corporations have changed dramatically and hobby lobby is have closely held corporation, they have a significant split between management and ownership. My question to all three of view, maybe just the two of you, based cant this will we see a move by large corporations rather than closely held Public Corporations asking for exemption from a variety of regulations. I dont know why they would. If they suddenly gained religion ended is sincere, if it is not it doesnt count, this is unchallenged. I dont know if they will make a religious objection to the environmental regulation or doddfrank or something. I am not sure how that would work so i am not sure what sort of incentives this sets up for corporations who are public to go private or become closely held. Indeed, if the main motive of most companies, especially the big public ones is to make money, the greens by adhering to this religious mission i detracting from that. If somebody wants to a certain religious beliefs, that will be treated according to a the statutory rubric, the Public Company setting, it will be very hard to do, not impossible but as long as it was clear to all investors and is not out of the realm of possibility for a future company to be set up this way. It would be hard for microsoft for exxon to unwind itself and at this religious mission in order to eventually make some sort of religious objection. It is kind of hard to fathom. There would be no objection in principle between closely held and non closely held corporations. The articles in corp. Bylaws and so forth and corporate donors want to do and if they wish to raise religious objections, the court would be hard to draw a line between closely held and not closely held corporations. If you look at justice and legals reasoning, it applies to both closely held corporations, the thing that was grappled with the opinion in the circumstances, the religious point of view. And it is a broad view the Public Corporation and the technical question will there be a Public Corporation to say this is our religious view . I remember in the let up, there was the talk about jetblue makes arguments but we are still waiting to see but in the landscape of religious exemptions this is one area you need to look at, will there be toledo says we doubt it but perhaps we will see these claims in the future ainge have to see if we succeed or not. I am not affiliated. This question with background, and objected to the concept corp. Exercised religion. And ilya shapiro raised the example of a kosher butcher who incorporates and that came up in the oral argument as well. I would expand an Example Holding on. Decides to postbusiness ventures in a single corporation. 1 of the business is kosher butchering her, is that deprived of all protection and it is part of a general commercial corporation. We can put that to a rabbinical quorum. One thing, i am not sure i have but specific what is the regulation being subject to and the claim for an objection, for are indeed some specifics to speak to it. In the past in many cases customers individual with rights to us search have coming to court, if you put in place this restriction in a kosher establishment, to exercise my religion and i get to challenge it and that happened in some of the cases that came up to the Supreme Court in 1916s. I am with the center of inquiry from day one and going down the line, we had in the hourandahalf we had here we have a lot of mention and lost count of the number of mentions of the free exercise clause. There hasnt been a single mention of its equally important brother the establishment clause. When we look at this, it is fundamentally and constitutional and initially was about turning around if you want to take an hallucinogenic tea, the government says no, there is no one else harm and if we allow you to do it this. The difference here, it is turning around and saying the right of an employee is subject to the religious beliefs of an employer and because the employee doesnt share those beliefs we will prioritize and use the government to prioritize the beliefs incs over the rights of the employee. How is that not a categorical violation of the establishment clause . It is not prioritizing the beliefs of the employer of over the employee, is saying if there are alternate ways of accomplishing the same goal, the employee, gets the exact same right fulfilled or what have you, through a different way the government accomplishes it in a different way you have to yield to the religious objections. It is not a situation of anyone who is employed here cannot use a particular contraceptive or we wont hire women or women of childbearing age or women of childbearing age who have sexual relations outside marriage or anything like that. It would be a different case articulated in a different way. I thought your question is why isnt it unconstitutional because it privileges religion over Something Else which is a broader and more interesting question. The question you ask is easy to answer because no right is being infringed of this there are other ways to accomplish it. The constitution recognizeds rights to religion, it is one of your natural rights and freedom of conscience is protected, nonreligious constance is protected as well in various ways. Our Constitutional Order presupposes potential because of American History and of the mill you out of which the framers came presupposes they were concerned about government infringement on religious practice, my or retract this, whenever any road in the free exercise clause. As long as the government is imposing a religion it can certainly say religious believers have certain rights to be able to exercise their believes. The question poses the question isnt just a case of conflicting rights. Is that the way you see it . No. I thought so. I thank the establishment cause was not about rights at all. It was a no power to the federal government to interfere with state establishments which were currently in existence and didnt end in this country until the 1830s. Not being about rights of all but no federal power to establish a natural religion, it didnt it isnt any more coherent and the fourteenth amendment if you want to use the rubric of a corporation than the tenth amendment is. The tenth amendment is another power restricting federal power restricting provision and no one thinks the fourteenth amendment somehow applies the tenth amendment to the states and neither i think, would this no power in the federal government applied via the due process clause or privileges in the fourteenth amendment. That is not the law the we have it is not a constitutional law or adoption that we have ever since the embarrassing case but that was a very late developing idea that somehow there is an establishment clause as a right or an individual rights that could somehow be applied to the states via the fourteenth amendment. If we go to the original meaning there will be isnt such a big conflict between the establishment clause and the free exercise clause. Peter montgomery, people for the american way. I wonder if you could address briefing over the disclaims made against nondiscrimination protections on the basis of Sexual Orientation and gender identity which was not at issue in hobby lobby but certainly an issue with a lot of states and maybe, federal issue if the Supreme Court makes a constitutional ruling on marriage equality. That is a question for you. It depends what kind of in discrimination you are talking about whether it is employment discrimination, i mention that. I think there is no way to assume in the constitutionality of the there is no way to achieve the goal of banning prohibition based on protected class and band that particular employment practice. In terms of serving customers it is a little different. In the sense that for example the new mexico wedding photographer who had a clients but didnt want to work a day Commitment Ceremony. In mexico have a referendum, despite that, the wedding photographer was find for not being willing to work the same sex Commitment Ceremony which is problematic because there are 100 other photographers in the Albuquerque Area that could achieved the same role. Not a situation like jim crow where states imported segregation preventing black travelers from a tower or restaurant or something so you had to break the monopoly power or the oregon baker or idaho chapel, all these private businesses that again given that there are lots of alternatives, the only reason to demand that they serve the gay marriage is to promote some sort of test case in bringing down the larger edifice. These are kind of complicated issues but ultimately you can enhance liberty by looking at whether someones rights are indeed being infringed by the government i was one of the few people kato is one of the few organizations that speak out both for marriage equality. I personally would rather government not be in marriage in the first place but it has these licenses it has given to everyone but at the same time if you are a private business and object to working a game marriage for religious or any other reason i think you should be able to. I want to make a separate point maybe i should have made earlier. We hear a lot about how peoples view of the constitution happens to match up with their policy preferences and isnt that convenient . I do think we see a lot of that frankly, people who believe in living constitution intends to match almost exactly with how they think every result ought to come out. In this particular case i know i speak for ilya shapiro because he says dillon the i dont share hobby lobbys religious objections to contraceptives. I think they are perfectly ok. But i do think they have a free exercise right to not be implicated in this practice than they think is in moral but i dont share that view of the ears and with respect to the establishment clause this is what made me think of it, i strongly support the separation of church and state and i am not religious myself and yet i think the original meaning of the establishment clause doesnt establish that proposition to that extent. So this is where i think the constitution doesnt line up necessarily with my own view of what i think governments should do with respect to religion but it is what the constitution says and that is the opinion i was giving. A point of clarification, the objection of hobby lobby was not to contraceptives generally. Exactly. Yes, sir. My question for professor burwell, to clarify a little bit about the congress not having the authority. There is a little softball for you. Easy question to explain. Congress has limited and enumerated powers one of which is to regulate commerce among several states and it is about the transfer, sale and movement of people and things from one place to another and that is not what obamacare is regulating. Obama said the tears regulating sales of insurance which is not congress and the this meaning and regulating local provision of Health Care Services which are not commerce under this meeting so it is not within congresss power to limit any of this. Is outside their power to do it. It might be within the states power to regulate this because states have general powers that are more general than congress does good this is why congress has no business in this field whatsoever and if we 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 is anything that once that any thing, all of a sudden individual rights that could be infringed come to the fore and that shows why. Structural constraints on the power of congress and the federal government generally, protection of individual rights that does not require you to formulate what rights we have and let judges and power judges to protect them. Thanks. Can you speak to the original intent of the phrase in god we trust and its usage on the currency and do you feel that it should be updated or should be continued with this tradition . Not so much the original intent but the original meaning is likely that they trusted god so that would be how i would interpret the meaning of that. It seems like unless theres some evidence that that is not what it meant i would go with the obvious meaning of that but if what you are asking about is whether that somehow is of violation of the establishment prohibition on the federal government, i dont see how that would be. The idea of setting up a national religion, what was called an establishment of religion had certain characteristics. State 10 establishment of religion, they were in existence at the time of the founding and the way the establishment clause is worded is Congress Shall make no law with respect to the establishment of religion. That basically says you may not establish a religion and you may not disestablish a religion. You may not make any law with respect to the establishment of religion. That is what clause says and that is what was thought to mean, in the early years of the country, none of the states that had established religions objected to the establishment clause and all ratified the First Amendment that had this in it. Then the question is does the fourteenth amendment change this somehow such that it creates an individual right against states . Is the states that doing this sort of thing in the fourteenth amendment did not change that because this aspect of the thirteenth amendment, the First Amendment was not about personal privilege or a community, citizens of the United States. When massachusetts was the last. Just a practical concern. I know people on the left will not like to hear this but when you go to work for a place generally you want to share the same values as the place you work. If there is antagonism in your own values versus the company were going to work for it is probably a practical sense a good idea not to work there to begin with. That is how i have always felt. I have seen a men working for christian schools, that never made sense to me that you would even want to work there. I had a situation back in the 90s where i transferred, i didnt want to work in an area in the military when there was a ban against gays in the military. I dealt with turned down some others things when i retired because the values that they had didnt match mine. My saying no probably made the wonder what was wrong. I just think somehow we have to think about why people believe the things that they do, as well as in to look at the constitutional legalism. A practical question. Why people hold the believe they do and work through that more than we do. Turn it into a legal question . I work for a Jesuit Institution and i think i shouldnt go to work for a Jesuit Institution define going to be deeply offended by the Jesuit Mission. I am not in agreement with some of my jewish colleaguess interpretation of the Jesuit Mission, but i have no problem with the Jesuit Mission itself. I have a lot more calls or working for state universities and for a Jesuit University but that is a decision i have to make when i decide to work for a company or not. You dont want to be paid with money that is fair the dripping with taxpayers blood . I have to admit i was a criminal prosecutor in chicago, and swore to protect the public from the bad guys. One last question before we break for lunch, sort of symbolic, and one of the jurists is randy but some other points that are misunderstood that is purchased or obtaining of contraceptives is not free. It is factored into the cost of insurance. If you dont pay your taxes you go to jail but not if you dont pay your hospital or doctors bills and the point that was omitted from the Affordable Care act was the huge cost of medications in the United States forces the cost of medications in canada and western europe or england. Sandra fluke, about contraceptives, her contraceptives were obtained through glaxo which is a british company. As luck would have it i wrote a long policy analysis on importation of drugs explaining why you have the disparity in pharmaceuticals between what we pay here and what is paid in other price controlled countries. In any event, any of you wish to address that he shoe . The only if angle i will say is contraceptives are not of very good fit within insurance. Insurance is insurance against risks that you hope wont happen and might happen so like getting 0 sip, somewhat foreseeable you will get sick but you hope you dont and get insurance in case you do. It would be generally speaking it is not the kind of thing when insures against. By mandating a contraceptive coverage which is now a federal mandate you are essentials in mandating a redistribution of income from people who dont use contraceptives to people who do use contraceptives and theres a lot of redistribution that happens as a result of federal law but calling it insurance is not a misnomer. Euphemism used to cover this is social insurance. When you put the term social in front of another term it changes the meaning of the term is in front of some is no longer insurance the redistribution scheme. That is what obamacare gave us going back to the earlier point until obamacare was passed and started having all these mandates that puts us on to the super where we are trying to figure out what to do with fat and how it intersect with individual rights, the other rights we have. This is a good example of that. I sort of disagree with that. It is Preventative Care. This is the Reason Congress wanted Preventative Care coverage, Insurance Companies traditionally had we are insuring against risk but that left her American People to stay healthy uncovered and the idea behind this regulation was to ensure Preventive Care to ensure that women could access the full range of contraceptive including some of the most effective ones which are extremely costly could not be obtained. That is the classic reason for insurance. This is not a new kind of insurance. And regulating terms and conditions of employment which seems more classically common, that have a full range of contraceptives and the court should have recognized that. It has been disguised as insurance. It with an lot of welfare schemes, nothing new about these, it has been under the rubric of insurance so there doesnt have to be a line item on the budget. The Health System more broadly, when you get your oil change with your Auto Insurance company. When you get a minor fender bender, look at what your deductible is, what your plan is, do you have a catastrophic care, when you make a wise decision, insurance doesnt tell you pay for expensive things. And bankrupt you or smooth out your risk portfolio. And distorted in other ways. Not just to redistribute from one section or one category of people to another. But also to change to further pervert the idea of insurance, public utility scheme. Lets draw this to a conclusion. Let me conclude by recommending this book, it has a wealth of ideas and information about this matter and get a much fuller and systematic accounting of these issues in that book. Lets break for lunch, but lets we will be joining the second floor at the conference center. Before we do a warm round of applause. [applause] [inaudible conversations] here is, that books published this week. Former director of the counterterrorism center