Transcripts For CSPAN2 Book Discussion On Religious Liberties For Corporations 20150216

Good afternoon and welcome to the Cato Institute. Im the director of the center for constitutional studies and your host for this event. I want also to welcome the cspan audience and those of us those who are looking at the event on cato Live Streaming in the archives. We are here to discuss religious liberty as it may or may not be exercised in the context of the modern Business Corporation pursuant to statutory and constitutional law. More immediately, we are here also to mark the publication of the new book on the subject from religious liberties for corporations and i note the title ends with a question. In the the book our two main speakers today, ilya shapior and david gans discuss hobby lobby and the blockbuster decision of the Supreme Court handed down at the end of its last term which rejected the obamacare regulations that provide employers sponsored healthcare plans to provide, which required employersponsored healthcare plans to provide free contraceptive coverage. Its based on the debate that took place earlier this year at the National Constitution center in philadelphia monitored. The opposing advocates examine whether the forprofit corporations can assert religious liberty exercise claims under the federal law and whether the businesses were owners or directors or officers. Or what the implications are that the Supreme Court has ruled in favor of hobby lobby. More fundamentally still is the question that i hope they will address along the way namely the religious liberty has become an exception to the government rule needing to be justified casebycase. The two speakers have 12 minutes each. After ilya shapior which they will take three minutes to respond. We will then turn to the professor for a 15 minute commentary before we turn to you, the audience for questions. Let me now introduce the two main speakers, and i i wouldve been will give them very brief introductions and i will introduce randy just before he speaks. Ilya shapior is a senior fellow with constitutional studies at the Cato Institute and editorinchief at the cato Supreme Court review. She contributed to a variety of academic and professional publications and regularly provides media commentary including an appearance on the colbert report. In the state legislature they filed more than 100 friend of the court briefs in the spin court before joining cato she was special assistant advisor to the Multinational Force in iraq and litigated that the two large law firms. David is the director of the human rights civil rights in the citizenship program. Hes the director from the history including the centers text and history narrative series. He regularly participates in the Supreme Court with a patient come he joins the center after serving the Program Director of the Law School Center for constitutional democracy and as an attorney in the Brennan Center for justice at the school of law. So we will begin with ilya shapior. Thank you. [applause] thanks everyone for coming into those of you in cspan land for watching. I hope that youre enjoying your insomnia and three in the morning. So by now, everyone here has heard of that the Supreme Court ruled that corporations can fire women use Birth Control and that religion trumps all other values in the constitutional discourse. What was at stake in the case had nothing to do and it powered up the as this the freedom to use any kind of contraceptive or how to balance religious liberty against other constitutional concerns. Hobby lobby was a straightforward question of statutory interpretation regarding whether the government was justified in this particular case in overriding religious liberties and that closely Held Corporations can be forced to pay for all of the employees contraceptives and if doing so would violate their religious beliefs. So there was no constitutional decision, no expansion of the corporate rights and no waiting of the religious versus the right to use Birth Control so lets unpack that and step back for a second. The department of health and Human Services included 20 contraceptives as part of its minimum essential coverage at all insurance plans had to have to satisfy the obamacare employer mandate. Through interpreting the requirement from the legislation, all that the legislation says you have to cover Preventative Care and of course in the interpreting that to the list of 20 contraceptives and included among those were for which a certain religious employers or people who ran businesses both forprofit and nonprofit objective to the pills and other devices come the morning after pills that work in part by preventing fertilized eggs from implanting and people objected to this on religious grounds including david and barbara, the founders and the owners of the arts and crafts emporium of hobby lobby that ive never been to a hobby lobby. But they consider it part of their christian duty is to provide Good Health Care to their employees that they also object to these various four items on the list of 20. But not complying with the mandate would have meant 1. 3 million in dalia fines. So on their own behalf and through the corporate entity they sued the government under the First Amendment and more importantly under the religious freedom restoration act of 1993. Now theres a security statute that calls for the narrow casebycase adjudication of the religious objections to the Government Actions and it was passed unanimously in the house 97 to three in the senate and signed by president clinton in 93 and the sponsors included such rightwing such as Chuck Schumer in the house and ted kennedy in the senate and these religious intents intents or two in first 1990 Supreme Court ruling to the secular humanist justus that approved the constitution of generally applicable laws that burden the religion so long as they didnt specifically intend to discriminate against religious people and that is the objectors wanted an they have to seek it from the court. If someone makes a claim the courts are supposed to look at whether the Government Action at issue actually imposes a significant burden on the religious exercise and if it does come up in the, then the government must show that it nevertheless is pursuing a compelling interest and is using the least restrictive means of achieving that interest. The burden is clear the government didnt even contest there was a substantial burden on hobby lobby. The Court Assumed that the Court Assumed the government asserted interest was compelling and the way that they litigated the case was curious. It didnt say that there was a compelling interest in free contraceptives or Something Like that. All they said was Public Health and gender a quality, very kind of broad interest that generally are held to be too vague and you satisfy this strict scrutiny by the courts. And some lower court ruled against the government on the basis of the interest wasnt compelling because it was vague and its like saying our interest is in good public policy. Nevertheless they just assumed that interest was compelling and so the case came down to the third debate of whether this was the contraceptive contraceptive mandates was the least mandate was the least restrictive means of achieving the governments goal and thats where the government lost because it did not and could not show that there was no way to provide free or cheap Birth Control. For example the government could pay for the contraceptives itself or provide tax credits or make the kind of regulatory accommodations that it offered to the nonprofit organizations some of which are still litigating some of these accommodations but none of these were offered to the forprofit businesses. Some of the religious groups by the way one of them is called Little Sisters of the poor and any of the other plaintiffs lawyers i suggest you get them to be your lead plaintiff in any filing. So instead, the holy and Human Services trust chose to continue forcing people to do its bidding and the court said you dont have to do that you can achieve your goal in some other way. So no one has been denied access. Anyone who women can still buy and a quieter whatever products they could before and it is 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 right to the State Government compulsion have sufficient justification. Before i sit down and ended his explanation of the case i guess i should address the corporate rights after all the titling the book and of the event today is the religious liberties for corporations which i really think is an academic exercise regarding how the mandates can dance on the head of the beleaguered citizen. Whether the corporation is asserting authority owners at least in the closely Held Corporation you could theoretically conceive of the Public Corporation as well as the interests are all outlined in its the people whose beliefs are being entrenched or out of his pocket book to find with the paid. It applies to all persons which is a legal term specified otherwise that includes nonhuman entities but the forprofit corporation. The abortion or Death Penalty or something. Its certainly true that hobby lobby doesnt but its hard to say that it doesnt operate according to the religious ideas it takes out ads in producing the readers to seek jesus and to hold beer on its trucks will put some weight their retailers make a lot of profit. Hobby lobby doesnt do that before going to the considerable profit. But neither changes anything because modern law uniformly in every state land to corporations to pursue any lawful purpose. They care about the sourcing of the organic free range meats and google says dont at evil and lots of organizations have all sorts of ethical systems according to which they pursue their mission and theres nothing really unusual about that i dont think. It means that it is subject to less protection. None of these undermine the rights of humans including owners, officers and shareholders. As the justice said for the majority here protecting the free exercise rights of the corporations protects the religious liberties of the humans that own and control these companies. Indeed Association Rights flow from the individuals from the individual rights of the people who make up the groups to which we attribute those rights be those groups, corporations partnerships, unions, fraternal organizations, political advocacy groups come a bunch of buddies playing poker. This is not a controversial statement and it didnt even start with Citizens United which freed up the independent political speech for all sorts of Association Association and the corporations in the unions. For a long time the mayor of new york could say that he really likes Rockefeller Center and wants to move his office there and can take it without paying the just compensation in the fifth amendment to the Corporate Structure really doesnt matter. It seems odd to say that as a partnership or however way you can pursue the profit its okay but once you incorporate for some reason theres a magical switch where you lose your rights and nor does the profit motive matter. We have jewish and muslim butchers but pursue their forprofit motive according to the religious beliefs and we need one of the Co Plaintiffs is a but as a christian bookstore. They are in it to make a buck but they are still in exclusive christian literature. So, lets put the corporation and the people must addiction to rest at least for the closely Held Companies if you pierce the corporate veils and the owners would agree. I share practical step to system that the publicly traded company, the fortune 500 Companies Say the line all of its stakeholders believe this to a sort of claim but if it is possible hobby lobby went public tomorrow and in all of its prospectus and the investor memorandum and so forth it played out how to pursue its business and it wasnt defrauding anyone i dont suppose there would be anything wrong with that. Here the First Amendment protects free speech, free exercise, not switching speakers here in the Citizens United context and people dont lose their rights in the First Amendment or otherwise when they get together. But the larger conclusion to draw, and this is getting to what roger said. He was hopeful that we would get to this is the essence of freedom is the government cant willynilly and force people to do things that violates their consciousness. Some may argue theres a conflict between religious freedom and womens freedoms or womens rights but thats a false choice as the president likes to say. Without this again women are still free to obtain contraceptives, abortion is and whatever else. They just cant force their employee or to pay for it and that hobby lobby employees were all of a sudden not having access to contraceptives i think we would have heard about it by now. The focus of the contraceptive mandate case is the intersection of the corporate rights and religious liberties. There is a bigger issue. This is an example of the difficulties and turning healthcare were increasingly the economy more broadly over to the government. When something is socialized or treated as a public utility we are forced to fight for every carved out of liberty. The more government controls whether healthcare, education or even marriage, the greater the battles over the conflict and values. I call this process hobbylobification. And the other public goods we largely agree at least in sight of the regional origins but we have disagreements about the social programs. And the government now dominates the expense of individual liberty. So those that supported hobby lobby before the court are rightly concerned that people are being forced to do with the religious beliefs prohibit but that all comes with the collective territory. [applause] thank you so much and thank you for putting on this fabulous event and it is a pleasure to be sharing the stage with ilya shapior. Sometimes we agree and sometimes we disagree but we look at the constitutions history. Where you told that story is hobby lobby was applying a statute, using the casebycase and adjudication. This case marks the first time in the nations history that the Supreme Court has given secular forprofit corporations religious free exercise rights and religious exemptions from the general business regulations. Its rare when youre talking about the Supreme Court to say this is the first time something has happened that the Supreme Court has said you can do it you can look at instances in the recent past like the gun case that its very rare to say this is the first time the court has said the corporations have this right in more than the 200 years of the nations history that hobby lobby is big news because it doesnt say for the first time in the nations history but for profit corporations are entitled to the religious free exercise rights from the general business law. Its now opened the door to new claims from the religious exemptions and its kind of the casebycase method. There is no principle in place that can say these people dont get exemptions but these people do. And this really marks from the pre exercise law that existed any time. One of the things is we have to see the screen to happen. While the court gave religious exemptions from antidiscrimination law . I dont think that it really answers that question. It said perhaps they wont be giving them the race context that those are all kind of up for grabs and time will tell. And and timmy the three big to me the three big things that are going on in hobby lobby we want to turn because at the end of the day we wanted to address the argument. What are the things going on . First, this is a major expansion in the right to the corporation and has backpedaled a little bit at the end of the day for the first time in history the court has extended to the religious freak exercise rights for the corporations and that is a right that has never been accorded to them in the centuries. What is really important is the kind of exemption they have been accorded and it extols the power over their employees who in the last to impose their religious beliefs on their employees and to deny them the civil rights and that is a very troubling kind of exemption and thats a very big part of the hobby lobby story and why myself and others think the court is going in the wrong direction. Let me try to say a little bit about each of those and then they will try to address the point. Although hobby lobby is a statutory case, this book is about addressing the larger issues as well so i want to start with the history of the constitution and i think what we are seeing in hobby lobby and perhaps other constitutional cases like citizen united is the Roberts Court taking us further and further away from the basic founding and understanding about the rights of corporations. When the constitution was founded it was very clear to the generation that corporations were not part of 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 mentioning the corporations the framers were extremely worried about doing so. It was a big debate about should we give the federal government power to create a corporation and the framers had no we dont want to create the power and they were worried about making the corporations we have 200 years wrestled with how we treat the corporations given the fact that individuals come together to be profitable in the Business World and we give them the privileges to make them extremely useful to that so they have some rights and most. Notwithstanding what was said about the corporations run by individuals they dont have the right to selfincriminating and people what the court recognized in those cases that right is essentially a right thing about the contents and Human Dignity. And the same is true when we talk about religious liberty. When i started this and i looked back at what what the framers say about the religious liberty. The founding generation understood it was rooted in the conscience and Human Dignity be as word document characteristics but he thought that over and over again this makes little sense as applied to. It is to transform the set of individuals into the different entity into the different rights and responsibilities and obligations. So what i find troubling and wrong about the corporations to have two claim special privileges to the limited liability the owners say we are not on the hook. We are protected. But here when it deals with a claim that corporation must spend money they say no thats not the corporation. So they shouldnt be able to go back and forth on the corporate individual status to gain the benefit. Whats most significant i think about this ruling is maybe the former question of can a corporation in the religious freedom but the question of the religious exemption and whats really significant here is the court has done something the Supreme Court has never done in the past and you can look back throughout American History and the book starts with claims made by jewish merchants which started in the early 19th century and didnt reach the court until the 1960s. There was a case in the 1980s involving the amish and it was a kind of fundamental precedent about the meaning of the free exercise clause and in all of those cases, we had businesses not unlike those that said we want to run this religion according to our basic faith and in fact every case that came before, the court said you are not entitled to religious exemption. And case after case in case after case even when youre dealing with Business Owners. And hobby lobby kind of opened the door to a new set of claims. And what is most troubling is that over the employees. It gives them the right to deny them federal rights and in this case, its the right to Insurance Coverage that includes contraceptive coverage. They have deeply held convictions of their own and wont be able to support the most. Employees shouldnt have to check their Human Dignity in at the workplace or. Afterilya shapior focused a lot and i know that my time is running short by noting rifa the decision as ilya said it never requires religious accommodation. The history before that is sometimes the First Amendment requires religious exemption but most of the time the Court Rejects the religious exemption and they reject the claim for religious exemptions to Business Owners and to me the key piece is involving the amish Business Owner that asked for the exemption for making Social Security payments and they said you are not entitled to the exemption because doing so would impose their religious beliefs and i think that Ruth Ginsburg that was most on point and should have been followed and the court have respected that they would kennedy would have upheld it under the standard that was supplied. Okay. [applause] spinnaker davids problem is with rifa. Not just him but anyone that doesnt like the result in hobby lobby because the standard is quite clear is there a substantial burden to the sincerely held religious belief, so kind as kind as a pretext of the pretextual once they got in the course of litigation like people who when they are arrested for marijuana distribution claim to be part of the church of marijuana and things like that and those cases fail. Whether there is any other means to achieve it. If that isnt the right way to balance the religious objections , then it should be changed or abolished. Senator patty murray was the lead sponsor of the get your boss out of my business act that didnt go anywhere. But thats the way that rifa works. Or davids problem perhaps its with obamacare itself or with the way that the department of health and Human Services interpreted it and retiring this mandate or the department of justice acted out extending certain accommodations to the forprofit businesses that only the certain kind of nonprofits. In each of those stages are writing writing of obamacare and its implementation in terms of its regulations and the accommodation given by the Justice Department coming 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 is more important than all that is forcing people to bend to the will of the government dictate as the correct view of things. Thats the new thing. Its casebycase. If the government is a compelling interest and there is no other way to achieve it you lose like the antidiscrimination law. Assuming antidiscrimination law applied to the private business or constitution in the first place, we have some poems about death but assuming they are constitutional theres no other way of achieving the goal to the compelling interest of not having private employers discriminate against people based on the category than to say you cant discriminate. So, the challenge on the religious ground to fail. Social security payments. There is no other way for the government to choose everyone paying for each others retirement and the sword of matter than two take the money from the different people. You cant provide the public clinic because it is a different thing that we are talking about in the contraceptive mandate. So ultimately, the issue of corporate rights is very small and the court didnt take very much time on it. The reason why the corporate right was found to be in this way at this time is the mandate that is so rare to force people to bend their religious beliefs to the will of the government for no particular reason. Thanks. [applause] that the court to sort it is what it was all about in creating the balance between the right of individuals to seek religious exemptions and statutes they truly generally applicable to the religious and nonreligious alike and the law was only a very small number of claims for the religious exemptions that were mandated and what the court has done quite consciously is create a new body of the First Amendment law but has no roots in any law that existed since the nation was founded. Ilya said the governments interests. One of the most effective and expensive is the one that hobby lobby said we dont want to pay for and that means if you are a hardworking woman and depend on insurance to ensure that you have access to contraceptives, you wont be able to achieve it. You wont be able to obtain the contraceptives and control your life and this is the way in which the exemption that is being granted allows them to impose on their individual employees and their religious beliefs and if you look and take seriously the body of law that it was designed to restore. Was this narrowly tailored ilya says the government can pay. But by that solution the government cant just make up any payment. That solution kind of destroys the downside that is supported by the two centuries of the law dealing with the First Amendment and so i think the court has kind of gone off the rails and how its construed that break from the understandings and the two centers of First Amendment law. Of course ilya mentioned those that are actively challenging. They could do this but now its under attack and the justice didnt say you know, we dont think those challenges will succeed. In fact in the day after they made it sound like those claims seem like they are pretty good ones. So the basis of the narrow accommodation by giving the corporate businesses the rights that have long been given to the churches, i dont think that really works when you havent accepted the banality of that combination so if the court has applied rfra against the backdrop that is to restore it would recognize this is accommodation that shouldnt have been granted because it is against the rights of the employees and i think the justices got it right when they made that point. Thank you. [applause] now youre going to hear a 15 minute response or Randy Barnett to give the speakers. I want to leave time for his talk because i could go on at great length in 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 the teachers constitutional law and contracts. He is the author of many books and countless legal articles. Among his books are restoring the lost constitution, the presumption of liberty which plays into the question that i last post in my introductory remarks. Also constitutional law cases and context which treats the constitution has directly on unlike most common common law motives books, and the contracts cases and doctrine. Most important for the 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] syndicates great to be back at the auditorium and the Cato Institute with my friends. I should probably disclose at the outset that i agree with ilya and high yearly in this debate but i dont think thats my role today is to play along and to make this a two on one debate. The way for example Harvard Law School did when they invited me to debate both in the constitutionality of the insurance at harvard they thought it was a fair fight. Maybe they were right about that. Im not sure. But i should also disclose that i am a big fan of david and what the Constitutional Accountability Center is trying to do which is offered over the text and history on behalf of the progressive constitutional outcomes. India today filed an amicus brief on behalf of me and several other constitutional law scholars in the case contending that the individual right to keep and bear arms was protected by state infringement by the privileges or clause of the 14th amendment. See. Because they have chosen to use the corporate form to associate or because they associate in hopes of making a profit. Of course, whether or not person to control the corporations are, in fact, exercising their right to practice their religion is the question that must be resolved before you can reach a conclusion about a particular legal regulation is restricting the right. It is hard to see how managements of walmart or apple are engaged in the free exercise of religion in the ways the management of hobby lobby is. I agree the rest the religious freedom restoration act makes the case pretty easy one. On statutory grounds. Instead of further argued on behalf of these inclusions, i want to pull back from this particular dispute to make some general observations about why were having this argument. Had congress been held to it the original meaning of the constitute, the Affordable Care act would debate unconstitutional because it exceeded congress as a number of powers 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. It would be no need to reach the First Amendment free exercise claim. This was true as well and the lopez, the gives a lopez versus United States. Because the court held that commerce had exceeded its enumerated powers under the Commerce Clause when it enacted a ban that 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 helder had recognized the Second Amendment does protect the individual right. What this shows is how enumerated powers is the way to protect the natural background rights and liberties of the people without having to identify and special protect these rights per se. And hobby lobby case illustrates the one speedy enumerated power scheme is breached, the court must confront individual rights issue under the due process clause of the fifth and 14th amendments. And in my view it is the due process clauses that offers courses to assess whether a particular deprivation of life, liberty or property violates the right was enumerated in the bill of rights or one of the unenumerated background rights privilege or immunities that are retained by the people. While the First Amendment and embrace 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 refusal to acknowledge the enumerated powers of congress were living in the constitution world at second this. In which we fall back on due process clause analysis is fundamental rights because the first right 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 do the structural constraints of the constitution including the fact that the powers of congress are supposed by limited to those that are enumerated in the constitution as functioning like the structure of the 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 preserve ones life libbey 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 of the public refused to get on board the constitutional ship until the framers promise to install a lifeboats i 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 an associate in the corporate form were the original meaning of the whole constitution currently being respected by congress and by the Supreme Court. Were in a world of second best. We are staying afloat as a free society in part by relying on the lifeboats that are provided for by the bill of rights. 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. There are, for example carveouts for individuals in the form of socalled fundamental rights under the due process clause. There are carveouts for groups who are deemed to be suspect classes deserving of enhanced protections under the equal protection clause. And carveouts for State Governments under the general heading though not the original meaning of the tenth amendment and the 11th amendment. These special carveouts or external constraints on the powers of congress may or may not be gaining given case directly supported by the original meaning of those clauses on which these carveouts are supposed to be based. But current Supreme Court doctrine under the rubric of these clauses has been devised precisely to compensate for the fundamental mistake of overriding the internal limits on congress enumerated powers. That is, by controlling the timing the scope of the power itself rather than worrying about whether they also violate rights. So these carveouts to bring us closer to the results that would be reached by the original meaning of the constitution as a whole that would occur in their absence. And that is what they mean by the fact that we are living in a world of second best a constitutional world of second best. This way of framing the issue does not resolve the debate over whether forprofit corporations have free exercise rights, it does explain why what looks like historical special rights or a historical special rights or carveouts are simply 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 power. With this in mind we can see the limitations of employ the original meaning of due process clause, the equal protection clause or the free exercise of religion and a constitutional regime that does not also view to the original meaning of commerce among the several states. Combining an ahistorical broad construction of federal power with a narrow and precise original meaning of the protections of life, liberty and property can yield a result that is far removed from the constitution is supposed to operate to protect the rights, privileges or immunities of the sovereign people considered as individuals. Before concluding, i want to offer another distinctive that may help clarify the debate between david and deleted. The meaning of the text of the constitution is one thing. How that meaning is to be given legal the facts by the courts is another. Socalled new original is i consider myself one, call the activity of asking the meaning of the text of the Constitution Constitutional interpretation. When youre trying to figure what the constitution means, you are engaged in interpretation. And then they call the activity of giving the meaning legal effect constitutional construction. When it comes to constitutional interpretation event originalists think the meaning of the constitution remains the same, or should remain the same until it is properly changed by an article v amendment to the meaning should remain the same until it is properly changed. And then this proposition i think both david and ilya agree. At least this is the proposition to which the Constitutional Accountability Center has committed itself. But when it comes to giving the original meaning of the text legal effect, by adopting constitutional constructions, we are no longer engaged in the enterprise of ascertaining the meaning of the text. Were attempting to devise implementing doctrines that do not violate either the letter or the spirit of the text but which apply that mean to particular facts and circumstances of particular statutory restrictions of interferences with the life, liberty and property. I offer this distinction because i think it helps us understand that when we try to answer questions like, for example, whether corporations themselves have free exercise rights or whether these rights are better thought of as being held by the individuals who were chosen to organize themselves in the corporate form, or the question of even whether smith or sherbet for example, which they talk about in the book come in the book were the most faithful to the original meaning of the text. We are trying to devise judicially administered will doctrines, we call them implemented rules, that are the most faithful to the letter and the spirit of the constitution. We are not engaged in constitutional interpretation problem. And a great many instances such questions of application or implementation are not matters but capable of being resolved directly by the original meaning of the text. Instead were trying to figure out how this original meaning is best given legal effect. Such doctrines are likely to evolve over time it has the original many of the constitution remains fixed. Escorts encounter new situations that are not clearly resolve or best resolve by previous doctrines. In this way constitutional construction takes on adjectives of the common law process that can be described as a living constitution but is more accurately conceived of as leading constitutional law. The law of the false, not the constitution itself. So let me know conclude by saying something that perhaps i should have said at the start. David and ilyas little book hold it up here is simply marvelous. I dont think ive ever read a clearosition of a typical constitutional and statutory controversy in a manner that renders it so understandable to nonlawyers and yet be entirely legally accurate and precise. This is a real tribute to both of these advocates. Each of whom made absolutely the best case for his own physician and you just got a taste of it this morning. Without ever stooping to distort the argument of his opponent. I must admit to being slightly in awe of both our performances here in this book and im not known to offer such praise lightly. The constitutional accountable is center and they give institute should both be proud should be both proud and grateful to have such bright, skillful and principled lawyers working for them. And it is also trip to Jeffrey Rosen and the National Constitution center of philadelphia to present such an argument in a manner that can be appreciated by the educated public, educated general public. This book both very well for his tenure as head of the important institution. So if you have any interest in the issues raised by the hobby lobby case, im talking to you out there, and the decision, i cannot more strongly recommend this book to you. By it read it, or forever hold your peace. Thanks. [applause] well, thank you ready to help you pick up on those last remarks. You have just a taste of the debate here today. Youll get a much richer discussion in this book. So get it. Let me, before we open up for questions from the audience, let me offer david a chance to respond to what i take to be randys argument, namely, the difficulty you had in finding precedents for the reason you found it so novel is that in effect it really didnt come up before. I mean the government for most of our history was an issuing statutes like obamacare that raised the question of ordering people to perform acts that violated their religious convictions. And so that may be the main reason you able, unable to come up with more precedents for this kind of right. No. I mean i dont think that is a fair characterization. If you go back through American History, debates of the kind that ilya and i had started not long after the founding. This tension between, you know if you are an individual, set aside the issue of corporations if youre an individual with religious beliefs does that make you i think as one Supreme Court case said it, does that make you yourself and allows you to sort of claim an exemption that no one else can from a general law . The first cases involving Business Owners i think came out of pennsylvania in the first years of the 19th century. So this debate should 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 law that apply to all whatever their faith . Thats an issue that has been confronted throughout American History. You know many of the biggest cases that are discussed deal with states, but it did the United States versus lee case which was a huge precedent in hobby lobby that ilya and i debated many different times and that Justice Alito and Justice Ginsburg debated many times was in 1982 involving a request for an exemption from the Social Security act. So this issue is one that you see throughout American History and sometimes it happens on the federal level, sometimes it happens on the state level. You can look at the body of corpus of the Supreme Court dealing with the rights of corporations and there are an enormous number of cases, many of them now quite obscure but can going back until the early days of the nation some of them, many of them deal with action on the state level because the state, because the framers didnt want to give the government states did a lot of the work so a lot of the early cases you know, one of the earliest famous cases the Dartmouth College case involved state regulation of dartmouths charter on a claim that i believe it was New Hampshire violated the constitution because they violated article one, section 10 protection against impairment of the obligation of the country. So there have been cases over and over and you know, it is you know, to mark how big hobby lobby is this is sort of the Court Speaking on this issue. For the first time and is not a constitutional case but you read, you know ilya should be happy with this, just as alito said many of the things that ilya said and in some ways he sets it in sort of a constitutional framework. So i think just saying its the statutory issue doesnt do justice to what its kind of a fundamental debate on the court. So randy essentially david is arguing that the obama legislation by virtue of being federal was the and now integrate issue, historical suite. But these issues came up so much more often at the state level. Right. I was making quite a the argument, but i will let you defend yourself from davids response. But i will say that, of course things to change with the passage of the 14th commitment that gave federal courts for the first time jurisdiction to protect the liberties of the people from State Government. Prior to the end of the found this would not have been a federal issue and he became a federal issue only after that. And the courts are actually very slow in using the 14th commitment as they should have been using it to protect individual liberties after the setback provided by the slaughterhouse cases which started to get the 14 of them and only started debate in a twist into this dark thats the first time the Supreme Court used the First Amendment, freedom of speech to invalidate a federal law was in 1965. Lamotte versus postmaster general to this was very Late Development but its not surprising that youd have a lot of early president like that. Let me just say, i mean, we have a different take on the original meaning of the Commerce Clause with randy. We filed a brief in the Health Care Case on behalf of state legislatures and we made an argument that it is rooted in the constitution. If you would disagree, i did want to mention were not going to sort of rehearsed that now because that would take the next, you know, we would need another hour and half just to do that. I guess i should also add than clarify, we never made an original, and originalism challenge the our challenge to the Affordable Care act was never based on the original meeting of the constitution. We could never up argue that in with the we were arguing based on existing precedents that this was a novel, an unprecedented federal power that cannot could not be justified because there was no limiting principle on it and to uphold this act would be to basically give Congress Police power which the court has said that congress does said that congress doesnt have x. Were not making an originalist argument. Today i am making the point that the whole Affordable Care act would violate the original meaning of the constitution and the original meeting, he would never to reach the First Amendment question of free exercise. Okay. Now lets turn to you folks. Wait for the mic of him to come. Talus your name and any affiliation you may have. And im going to direct one side of while youre asking the question, and sending the microphone to the next so keep your hands up. Lets start right here. Hi. Andrew with the heritage foundation. So i really appreciate it is talk. It was so helpful and i have the book as well. So quick comment and then a quick question the economy is, you know, corporations cant pray. I think that is perhaps an impoverished view of prayer. I committed to the medieval to work as to pray. So theres that. My question is you know you said walmart couldnt possibly be, and hobby lobby is clearly a secular corporation. And ilya said fortune 500 companies i think would be very difficult for them to show their exercise of religion. So the question is can you come like a sure grasping and trying to get a decision procedure preps which is made pure determine when a corporation is exercising religion. Set aside the question of whether its religion or not but when did they get together and how many people does it take whats what does it take to be considered closely held . And you kind of get to that issue . Sure. The court didnt draw a line. If i was a lawyer advising a company that was organized along certain religious lines, i would say you dont have a mission statement, get one. I would say make clear what your policies are. The greens didnt just invent this opposition to these particular methods of Birth Control once obamacare was passed. I think nobody disputed that but they didnt manufacture some objection pursuant to litigation. So those are the sorts of things that affect courts will look to. Theyre not going to look good by with some theological dispute about whether you are correct in a religious interpretation but it will look at whether you have a sincerely held religious belief and whether indeed the Government Action has substantial burden on it. Trevor from the Cato Institute. Two questions for david. One is you talk about corporation and the meaning of the term and what the founders thought about it. I wonder how you rectify that with the fact there were no General Corporation statutes any state into 1795 and really until the two 50s and corporation and Something Different more like a state monopoly. And second question is, when you said hoppe lob was denying a federal right to the women employees. Could you describe what the federal right is and what it looks like after it gets through hhs and one that has to go through your employer or not . So, so on the first question if you look at, a even look at the sweep of American History, obviously there is a fundamental change in both and in what corporations do and how they are regulated, and that change is kind of overtime but i think what doesnt change this kind of 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, now what the special privileges might be might be different in the monopoly setting but even under a General Corporation law corporations receive special privileges that individual americans cant receive. Thats the defining aspect of a corporation. Because of that the government has a broader latitude to regulate corporations than it does individuals. I think thats the principle that is reflecting the text in history. So even though we have General Corporation laws as opposed to a charter thing, you know few corporations shall come is chartered to do such and such. I think it doesnt change the fundamental principle that the government kind of retains authority to ensure the corporation dont abuse the special privileges, and that gives it a special regulatory latitude. That certainly is clear under state law which states have plenary power to regulate corporations, especially if theres a charter on the federal level. Its complicated by interaction with the scope of Congress Powers which range has sent abroad, but there are limits which randy has said are brought. So thats, my general take is doesnt matter the way corporations, theres been a move towards General Corporations that principles hold. Wait, i thought it was i mean, the right as i understand it that is, you know that was reflected in the hhs regulations was employers do have to provide, and certainly this still holds as to Public Corporations or if you have an employee sponsored health plan and you had to cover the full range of contraceptives you know including as well as other things that the regulations provide for. You know there are no new regulations that deal with i think since the hobby lobby decision that deal with both the hobby lobby situation as well as, as well as sort of the little assisters example of those are under challenged. I think the right is sort of the same one that the court talks about. Right here. George washington university. The rather loose use of the word corporation is what bothers me because corporations have changed dramatically. And hobby lobby is clearly a closely Held Corporation. Went most of our significant corporations have a significant split between management and ownership. So my question to all three of you, maybe just the two of you based on this will we see a move now by large corporations rather than a closely held Public Corporations asking for exemptions from a variety of regulations or law . Well, i dont know why they would. If they suddenly gained religion, if its sincere its sincere. If its not then it doesnt count. This is a challenge. I dont know if i could make some sort of religious objection to an environmental or regulation or doddfrank or something but im not sure exactly how that would work. So im not sure what sort of incentives really 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 wants is to make money, the greens are detracting from the. Again, if somebody wants to assert religious police, then theyll be treated according to the statutory ruppert. In the Public Company said it would be very hard to do not impossible, but again as long as it was clear to all investors and all the stakeholders were outlined, i suppose its not out of the realm of possibility for some future company to be set up this way. It would be hard for a microsoft or an excellent something to unwind itself at this religious mission in order to eventually make some sort of rule. Its kind of hard to fathom. There would be no objection in principle between closely held and nonclosely Held Corporations. You could just look to the articles of incorporation, bylaws and so forth and see what the corporate owners want to do. And if they wish to raise religious objection, seems to me the court would be hardpressed to draw a principled line between closely held and not closely Held Corporations. I should sort of make the point, if you look at just kind of Justice Alitos reasoning it applies to both closely Held Corporations, some of which are quite big as well as public ones. The thing that was grappled with at oral argument some of the opinion in what circumstance which shareholders say we have a religious point of view . And the court sort of has left us with kind of a broad view of the right of corporation that would encompass the Public Corporation with her assist technical question with a Public Corporation assess this is our religious view. I mean i remember in the run up there was talk about jetblue makes arguments in sort of religious terms but were still kind of waiting to see. But i think in the landscape of religious exemptions thats opened up, this is one area that we need to watch out and see will there be a leader sort of says we dont doubt it but perhaps we will see these claims in the future and well have to watch out. Unaffiliated. This question with some background is directed to david. You, as i understand it, objected to the Concept Corporation being able to exercise religion. And ilya raised the example of a kosher butcher who incorporates the m. E. D. I. C. South came up in the Supreme Courts oral argument as well. I want to expand that example. [inaudible] holed up. Okay. Decides to put all its Business Ventures and a Single Corporation so the generalpurpose corporation and 1 of the business is the kosher butchering. Is the kosher butchering deprived of all production and protections because its part of a general commercial corporation . Put that [inaudible] one thing that, i may, im not sure i have kind of a specific edge because i want to go kind of whats the regulations theyre being subjected to what is a claim for an exemption or was [inaudible] i know, but i need some sort specifics to speak to it. I will say in the past come in many cases, customers who are individual to own rights to assert have come into court and said look if you put in place this restriction on the kosher establishment, it affects my able to exercise my religion and i get to challenge it. I think thats what happened in some of the cases that came up to the Supreme Court in the 1960s. I think there are ways these cases in the kosher butcher example may make it to court anyway. My name is nick. Im with the inquiry which ugly was the only organization that opposed rfra from day one and all these problems coming down the line. Weve heard in the hour and half that weve had here without a lot of mention. In fact, i 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. And we will look at this application of rfra were becomes unconstitutional because rfra initial was turning around for example, and sang as a church if want to take a hallucinogenic tea, then the government says no, theres no one else harmed if we turn around and allow you to do this. The difference year on where becomes unconstitutional is its turning around and saying the right of an employee is now subject to the religious beliefs of an employer, and because the employee doesnt share those beliefs we are going to prioritize and use rfra and use the government to prioritize the beliefs of the corporation over the rights of the employee. How is that not a categorical violation of the establishment clause . Well, its not prioritizing the voice of the employer or the employee. Its saying if there are alternative ways of publishing the same goal, the employee, meaning, gets the exact same rights fulfilled or what have you, through three different with the government a conscious in eddie tafoya, then you have to yield to the religious objections. So its not a situation of anyone who is employed here cannot use a particular contraceptive, or we wont hire women or we wont hire women of child bearing age or we wont hire women of childbearing age who have sexual relations outside of a marriage or anything like that. That will be a different case articulated a giveaway. I thought your question would be why isnt rfra unconstitutional because it the question you ask is very easy to enter because again no right is being infringed but why isnt rfra constitutional for background . Because the constitution recognizes rights to religion but its one of her natural rights but i would argue freedom of conscious is protected of nonreligious consciousness protected by the First Amendment as well. In various ways. So our Constitutional Order presupposes potential by because it American History and out of which the framers came presupposes, they were concerned about government infringes on religious practice and what have you so they wrote in a close. So as long as the government itself isnt impose some kind of religion it can surely say that religious believers have certain rights to be able to exercise their beliefs. Rainy, the question poses the question isnt this isnt a case of conflicting rights to is that the wages he . No, because i dont think i thought so. [laughter] because i dont think the establishment clause was 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. And so nothing about rights at all, i think about no federal power to establish a national religion. It didnt come it isnt any more coherently incorporated in the 14th amendment if you want to use the rubric of incorporation and the tenth amendment is to another part of restricting provision and nobody thinks that 14th amendment somehow applies the 10th amendment to the state. And neither i think with this no power and the federal government be applied to the states via the due process clause or the privileges of the 14th amendment. Thats not the law that we have. Thats not the constitutional law or doctrine that we have ever since the everson case. But that was a very late developing idea that some others and establishment clause, our right as will an individual by the consumer be applied to the states via the 14th amendment but i think this is coming to go back to the original meaning there really isnt such a big conflict between establishment clause and the free exercise clause. Peter montgomery. Is when if you just address briefly the religious claims 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 may become more of a federal issue if the Supreme Court makes a constitutional ruling on Marriage Equality. I think thats a question for you, ilya. Ilya. It depends on what kind of discrimination law. I think there is no way to begin us in the custody shot of the employment this commercial in the first place, theres no way to achieve the goal of banning probation based on protected class and the band that particular employment practice. In terms of serving customers, its a little different. And the sense that for example, the new mexico wedding photographer who have gay clients but didnt want to work a day similar. And this was a referendum, but despite that still the wedding photographer was fined for not being willing to commit to willing to work a samesex Commitment Ceremony which is problematic i think because there are 100 other photographers in the Albuquerque Area could have achieved the same goal. Its not a situation like jim crow where state supported segregation prevented like houston become to find a hotel room or a restaurant or Something Like that and get a break the monopoly power. Or the oregon baker or the idaho chapel, all these kind of private businesses that again, given that there are lots of alternatives, commercial alternatives, and the only demand they serve the gay marriage is to promote some kind of test case, going down the larger edifice. So these are kind of coveted issues but ultimately i think you can enhance liberty by looking at whether someones rights are indeed being enhanced by the government. I was one of the few people and cato is one of the few organizations that speaks out both for Marriage Equality while i personally would rather government not be a marriage in the first place but it does have its licenses, has to given to everyone. But at the same time if youre a private basis and should just if you check to working a gay marriage for religious or any other religion for that matter i think you should be able to. I did want to make a separate point that i made sure made earlier. We hear a lot about how people view the constitution just happened to match up with their policy preferences. And isnt that convenient . I do think we see a lot of that on the left frankly, people who believe in living constitution constitution which matches up exactly with how they think every result ought to come out but in this particular case i know i speak fortran was that because he said so in the book, i dont share hobby lobby is religious objections to contraceptives but i think contraceptives are perfectly okay. But i do think that they have a free exercise right to not be implicated in this practice that they think is immoral but i dont share that particular view of history and with respect to establish the cause, this is what made me think about it i strong support the separation of church and state and a religious myself and yet i think that the original meaning of the establishment clause isnt doesnt establish that. This is where i think the constitution doesnt line up necessary with my own view of what i think government should do with respect to religion but if you think is what the constitution says, and thats the opinion i was giving. If im not mistaken, just a point of clarification, the objection of hobby lobby was not to contraceptives generally but exactly, right. Okay. My question for professor barnett. I want you to clarify lived about the congress not having the authority to pass obamacare. Thank you. Theres this little softball for you, randy. Easy to explain. Congress has limited and numbered powers. Commerce among the several states is about the transfer and sale of movement of things and people from one place to another. And thats not what obamacare is regulate in the obamacare is rightly both the sale of insurance which is not commerce under this mean and also regulating the local provision of Health Care Services which are also not commerce under this meaning and so its not within Congress Power to regulate almost any of this. And so thats why its outside of the power to do it. It might be within the states power to regulate this because states have general powers that are more powers that are more general than congress does but this is the reason why congress would has no business in this field whatsoever. And then if we are to respect that limit we would be having this debate about interference with individual rights because its only when when congress have the power to do pretty much anything it wants that all of the sudden all the individual rights that could be infringed to the floor. That just shows why the structural constraints on the power of congress and the federal government generally is itself the protection of individual rights that it does not been required to form what rights we have and let judges, empower judges to protect them. Can you speak to the original intent of the phrase in god we trust and its usage on our currency, et cetera . Do you feel it should be updated or should they continue with this tradition . Well, i think that not so much the original intent, the original meaning in god we trust is likely a trusted god. So that would be how i would interpret the meaning of that. Thats what seems like to me unless theres some evidence that thats not what it meant, i would go with the obvious meaning of it. The if that is somehow a violation of the establishment prohibition on the federal government is i just dont see how that would be. I think the idea of setting up a national religion, what was called an established religion that certain characteristics. State that establishment of religion to them in existence at the time of the founding. What to the way the clause is where it says Congress Shall make no law with respect to an establishment of religion. It basically says you may not establish a religion and you may not this establish a religion to you may not make any law with respect to the study of religion to thats what the clauses. Thats what it was meant, was thought to mean in the early years of the country. None of the states that have established religions objected to the establishment clause and they all ratified the first thing in the head is in the. And then the question is does the 14th amendment changed is somehow such that it now creates an individual rights against the states . Because really its the states that are doing this sort of thing and i think the 14th amendment did not change that because this aspect of the 14th amendment, First Amendment was not about a personal privilege or immunity of citizens of the United States states. The church is continued until 1836 when massachusetts was the last. [inaudible] just a practical concern and i know people on the left will not like to do this but when you go to work for a place, you know, generally you want to share some of the same values of the place you work. And if theres antagonism in your own values versus the Company Going to work for its probably an article since a good idea not to work there to begin with. Thats how ive always felt. Ive seen gay men working for Christian Schools that in never make any sense to me that you would even want to work there. I have a situation back in the 90s where i transfer because they want to work in an area that sold the military when it i was a band against gays in the military. So i dealt with some and i turn down some of the things when i retired because, you know i didnt the values that they had didnt match mine and my say no probably made him wonder what was wrong but i just think that somehow we have to think about why people believe the things that they do as well as and look at the constitution legal, as about the question. We understand why people hold the beliefs they do and work through that more than we do. I works but it turned it into a legal question spent i work for a Jesuit Institution, and i think that i should should and could work for a Jesuit Institution if im going to be deeply offended by the Jesuit Mission. About to nod in agreement with some of my jewish colleagues interpretation of the Jesuit Mission, but i have no problem with the Jesuit Mission itself. By the same token have a lot more qualms about working for a State University than it would for a Jesuit University but thats a decision i have to make when i decide to go to work for a company or not. You mean you dont want to be paid with money that is fairly dripping with taxpayers blood . [laughter] welcome i do have to admit that it was a criminal prosecutor in chicago and i was paid such money to protect the public from the bad guys. Lets take one last question writer before we break for lunch. Questioned right here. The moderators the last name of pilon. The obtaining of contraceptives is not free. Its factored into the cost of the Health Insurance. If you dont pay your taxes you go to jail but not if you dont pay your hospital or doctors bills. Any other point is that was omitted from the Affordable Care act was a huge cost of medication into United States versus the cost of medications in canada, in western europe or england. Sandra fluke was a celebrate about contraceptives, but i believe her contraceptives were obtained through plaxo which is a british company. As luck would have it i wrote a long policy analysis on the reimportation of drugs to explain why it is that you will have the disparity in pharmaceuticals between what we pay here and what is paid in other price controlled countries. In any event our any of you wish to address that issue . The only thing i will say is that contraceptives are not a very good fit within insurance. Insurance is an insurance against risks of things happening that you hope wont happen but then they might happen. Its like getting sick. Somewhat foreseeable you will get sick but you hope you dont and you insurance in case you do. Contraceptives are more of a consumer good. And generally speaking its not the kind of thing that really is something want insurance against. By mandating contraceptive coverage, which is now a federal mandate, youre essentially mandating a redistribution of income for people who dont use contraceptives to people who do use contraceptives. Obviously, theres a lot of redistricting that happens in the country as a result of federal law but i think calling it insurance is a misnomer. And the euphemism that is used to cover this is social insurance. As soon as you put the term social in front of another term it changes the basic means of the term that it is in front of. So its no longer insurance. Its a redistribution scheme. But thats something that Obamacare Davis and this goes back to rogers earlier pointer until obamacare was passed and to start having all these mandates thats what put us into the soup, what were trying to figure out what were going to do with that and how does that intersect with her individual rights, the other rights that we have. This is a good example of that. Actually can i, i mean i sort of disagree with that. I think its not social its Preventative Care. This is the reason why congress wanted Preventative Care covered, insurance covers tradition had, well, we are ensuring against risks but that left things that the American People need to stay healthy uncovered. The idea behind this particular regulation was to ensure preventive care, to ensure that women could afford to access a full range of contraceptives including some of the most effective ones which are extremely costly. And without the insurance could not be obtained. To me thats the reason for insurance. So i dont think this is some kind of newfangled kind of insurance, sort of congress using its authority and i think here is regulating kind of the terms and conditions of employment which kind of seems kind of our classically commerce and doing it to ensure that women have access to full range of contraceptives and i think the court should recognize it. Its an old fangled welfare scheme and its just been disguised as insurance. So were lots of welfare schemes. Thats what it is and its just been gussied up under the rubric of insurance. And so doesnt have to be a line item on the budget spent this is about our Health Insurance system, our Health System more broadly. When you get to oil change you dont file a claim with your Auto Insurance company. When you get a minor fender bender, you look at what your deductible is what your plan is, do you have a catastrophic care for your car or policy et cetera and you make a wise decision to insurance doesnt have to pay we pay for expensive things or Something Like that. It helps you, as randy said cover risks that would otherwise be, you dont know when theyre coming and they could bankrupt you and their smooth out your risk for fun as it were. And since we dont have a real market for health care and it keeps him to star in ways, this is just one of the way not to redistribute it from one kind of category of people to another but also to change, further pervert the idea venture into something thats kind of a public utility schema. All right. With lets draw this to a conclusion. Let me conclude, however, by again recommending this little book. Its got a wealth of ideas and information about this matter, and youll get a much fuller and systematic accounting of these issues in that book. Lets break for lunch but will be going up to the second floor to the Conference Center for lunch. But before we do a warm round of applause for our speakers today. [applause] [inaudible conversations] is there a Nonfiction Author or book you would like to see featured on booktv . Send us an email to booktv cspan. Org, tweet us at