so i think that analysis is why. my piece is sort of in the same order. it's a significant enough question can they use a particular execution drug. it did give rise to a very interesting and bitter dispute between the five jusseses. but the fact that we have as we do periodically have senior more liberal justices say i'm not doing this any more, i'm not going to tinker with the machinery of zets any more is the more lasting piece of this particular decision. so i think that's something you want to put up why. and then why i endd with alito. i think the weight of the beast has to acknowledge what the majority is doing. in this case he said something quite succinct that moved off of description of the crimes for which these oklahoma inmates have been put on death row for. but as this illustrates there's no perfect ideal way to do it. things are going to be slightly different. and most of us are in pretty much the same place. when i look at my story in the morning and david's story and bob's story for most stories, they look alarmingly similar. they often have a very similar lead, similar first quote. newspaper work is in a way a fairly narrow craft. >> wouldn't you be concerned if we actually differed on the outcome who won and who lost? >> the thing is they're both wrong. because what you really found from that is there are seven justices who didn't question the constitutionality of the death penalty. what i thought was stirring in this was it was a narrow but i think the end of my lead was unequivocal directive that states could experiment with ways to excute people and the court wasn't going to get in the way of that. i do think obviously as you said i think i put it in the fourth graph that two of them dissented. i thought it was interesting that the other two liberals didn't. i was especially i want rested and i don't have a good answer for justice sotamayor who i think is the most questioning of the death penalty and whether it's fairly carried out. maybe it means that it's going to mean more later if she does that. maybe that would show some sort of momentum rather than it's just a minority of the justice whose feel that way. but i thought that was an interesting part of it, too. >> now that i hear your reason ing sooner put my head in a paper bag. >> i was going to go back to something bob said. he made a point about the difference between what they were saying and what sotamayor was saying. he says i leave it to the audience to see how different they really are. i should mention that i don't write our daily stories the way these reporters do. i will often write a side bar or some sort of analysis piece. i did a separate on just these two senior liberals calling for a reexamination of the death penalty. i did have to be aware of how long i've been covering this thing because i remember when harry blackman said i shall no longer tinker with the machinery of death. i was around in the late 80's when it was justices marshall and brennan just alone always dissenting from capital punishment saying that they were against that. and that's the last time we've had something like that. so the fact that ginsberg and prier were hinting they would go that way. they didn't say they were. they were saying we would like to review it. >> but justice stevens said it in the last case, too. >> but it wasn't until he got off the bench that he called for it more stronger. >> but some of that suggests an answer to bob's question. i think some of it is that if for 20 years you're reviewing all the time last minute requests for stays of execution on vacation, pulled out of the opera, having to vote on these things and seeing that the liberals would say there's no rhyme or reason to who lives and who dies. at some point you probably get a queasy feeling in the pit of your stomach. >> i agree with that. orerin kerr vote a really good piece about the sort of we'reieness. i thought there was one other thing that would catch your attention. it's the issue i raised earlier. supposed year after year you have had to approve last-minute requests or some sort of question about an appeal in a death penalty case and you said there's no grounds. and then you learn maybe reading in a newspaper whatever that that fellow was innocent. i would be i think, just to speak for myself, i would find it wow. because i feel as a justice it's our responsibility to get these right. imagine if you then learned that you've turned down a lot of appeals for somebody who said we need more money to investigate this and you said there's no grounds for that sort of appeal. you've turned it down and then you learned the person was innocent. i would have thought i can't -- if that happened once and then again i think i can't trust the system. do you want to clear the way to somebody to be actually excuted at 11:00 at night when you've actually had the experience last year and the year before that that some of these people were innocent? so i think that's one of the things that might change your view over time. >> to your question of why justice sotamayor didn't join, i wonder -- she wrote such a strong dissent on the marriage about how what was going to be done to these prisoners with more or less burning them at the stake. that she maybe didn't want to distract attention from that message by putting her voice with the other two on this broader question. does that make any sense? >> it could be. i don't know she wouldn't. this issue was -- the oral argument in this case was the most contentious i've seen in my short relative to everyone else time at the court, was really nasty. and there were really -- you saw how deep the divisions are among the justices on this issue. this is the one where they answered each other and kagen brought up the burning from the inside and alito answered her. they weren't waiting for the advocates to say anything. and the chief justice finally gave more time to the advocates saying to a degree that it's unusual even for this court we haven't let you talk. and so he gave them some more time to talk. and so i think there was some real bad feelings among the justices about this case, about this drug. and about this issue. and i think we'll see that come up more and more. >> and do you remember how it came up. you know this, bob. this was a really unusual situation. because in january four of these murderers had this appeal there raising this question. one of them, a guy named warner, was about to be excuted. so on the, whatever, thursday night, they allowed warner to be excuted with four dissents. them, a guy named then the next week they essentially granted his case. they granted the case of the three remaining murderers. i thought, boy, there's a way to have an unhappy workplace when five of you let the guy get excuted and four of you then want to granted the case. so you could tell from the beginning there was a real divide on this one. >> didn't there used to be a custom of a courtesy fifth vote for a stay in these death penalty cases? >> they used to call actually i even remember when it was called the gentleman's fifth. that was before there were any women on the court. but, yes, it would be -- since you need four justices to grant sert and five to grant a stay, if there weren't enough votes for a stay somebody would come over so that the person wouldn't be excuted while his case was going to be heard. and you're right, that seems to have disappeared. we don't know exactly why this happened in this case. some people have said that maybe the papers weren't properly before the sert papers weren't before them. but it does, it's not -- it's not pretty to have somebody excuted while -- you know, them giving the green light to the execution and then a few days later they grant sert. used to >> let me ask a slightly more subtantive question. do you think it made any sense for breyer and ginsberg to essentially call for people to bring challenges to the death penalty to >> let me? i suppose they know anthony kennedy better than any of us but hasn't he been a complete hard liner on criminal punishment issues? >> on the death penalty he's been in the lead on categories of people and categories of crimes that are death penalty eligible. it also goes a little bit to the point joan made a wile ago that the status quo is we have the death penalty. putting this question on the agenda is not going to make that any worse from a liberal perspective. so if you can get four votes to put something on the agenda maybe you pick up the fifth vote, maybe don't. a liberal but you probably don't make life worse for your side. >> but what of the view that this is a legal challenge that would be four, five years in the making, that who knows who is going to be on the court four or five years from now? so it's not something that changes in six months but breyer was basically saying there should be a broader well-thought out challenge to capital punishment across the board. >> i suppose the question for ants death penalty advocates is how do you stop some lawyer somewhere in the country from filing that challenge tomorrow who wants to go to the supreme court and has a client on death row and feels it's an obligation to get that issue up there? i think the answer is probably you can't. >> it seems like a question for you, art. >> yes. well we tried. but there's thousands of lawyers around the country and they don't listen to me. but sort of responding to my own question about justice kennedy, one thing he did this term that surprised i think everyone was his concurning opinion sort of out of the blue on solitary confinement. did any of you pick that up and write about it? >> it's not out of the blue, actually. he's talked about that before. >> but it was out of the blue in the particular case. >> actually it might be his issue a little bit that he has stepped back some to call attention to problems. i thought that was an example of that even though it might not have been the best case for it. and it did get attention in the media beyond just the case itself. >> because there's an issue where someone really ought to bring a case. if you know kennedy is leaning your way there may be five votes. >> there is apparently a case somewhere in virginia or south carolina and one of the aclu attorneys told me is that in a lot of these states people are automatically sentenced to solitary confinement on death row. in other words, you don't have to do anything bad or you don't have to be particularly judged to be particularly dangerous. it's just like an automatic matter. and kennedy quoted all sorts of literary figures as saying this is in effect a fate worth than death. so i thought it was a really interesting -- that is one of the things about this term that i don't recall any -- like so many people writing separate opinions concurrences dissents taking some big view that speaking really to a broader legal audience. and sort of setting the stage for future cases. >> and then it gave rise to a response from justice thomas and this wasn't one of his 35 page attacks. it was a paragraph that said these people's living quarters are much more spacious than their victims. >> which struck me as verging on inappropriate. but did anybody, did any of you express directly or sort of indirectly by quoting someone else opinions about that rejoineder? >> he wrote several opinions where he went at great length to told the story of the victim and what the victims' family, the devastation of this murder. thomas' view was we're deciding here a very abtract sort of etheerl question of an appeal 20 years down the road and we've sort of scrubbed away the victim and the impact of this horrible murder. i thought it is a different important perspective. >> he include add picture of the victim in one of the cases, too, as part of the opinion. which was a departure. but it's, again, i think we're seeing different way that is the justices have decided they're not just speaking to each other but also to the public calling attention to things that are important to them. >> to your question this is not some piece of legal reasoning that needs an outside perspective. i think the average reader can draw their conclusion about the appropriateness of the remark. >> joan you wrote a story about ten days ago about the justices styles when they announce decisions. for some it's an art form. tell us a little more about what you wrote and why that was a worthwhile story. >> well, when you're up there, the nine of them have a distinct approach to how they want to read their opinion. and actually justice thomas, who you observed earlier, doesn't speak from the bench. sometimes he'll make a couple jokes. so you get a little of his personality in it. and the justices as a group have traveled a long way from the days of justin byron widen would read from a sentence and say you could read it. justice kagen really likes to talk about the facts behind the case and both she and the chief justice have sort of a nice come here and listen to me, listen to my story, way of approaching it. justice ginsberg takes a lot of time with her reading. she's another one that hands out the rendition of what she says from the bench so we can quote directly from it. it adds to -- just think of the sort of suspense. we don't know what opinions are coming on what day. so when the chief says justice spitzer will now announce the opinion in 4 42 you're like oh my gosh. are we going to see what direction will it take just by virtue of who is going to read it? that happened in the texas housing case when we knew the chief says it's going to be justice kennedy. he's right in the middle it could have gone anyway. but the suspense was heightened. that was an unusual reading for him to say i'm going to side with the liberals and uphold this expansive reading. so it's -- they kind of some of these justices sort of play along to make it sort of a tale getting to the climb max at the end with whether they've said yes or no. >> just a post script to what joan was saying about the opinion announcements. from what she said i think we could all agree that it wulled sure be nice for the public to be able to hear them or those opinion announcements. but the court has a special disdain for that because they sometimes allow the audio of the oral argument to be released fairly soon afterwards but the aud yo of opinion announcements they send to siberia and they're not public until months later. when the national archives processes them. and the reason for that is fairly clear. past justices and current justices have said that sometimes they hear a fellow justice announce an opinion that they were part of and they think gee whiz, i didn't agree to all that stuff that this person is -- the opinion announcements are not distributed to the other justices in the majority. so that sometimes justices will sort of put their own spin on their majority opinion and they will go off script sometimes. and justices then end up afterwards saying that if i had known what he or she was going to say, i wouldn't have joined the majority. so i think for that reason they don't want opinion announcement audio to be out there quickly as -- and be treated by us as the sort of official summary of what the opinion is. >> i was just going to say that sometimes there is no suspense whether they announce them as justice alito began one this time i can't remember the defendant's name. but he said that the defendant said that he would take care of his girlfriend's two children when he sent her to be a prostitute in washington, d.c. it doesn't take a blood hound to know how that one's going to come out, i don't think. >> actually, whenever the announcement justice alito has an opinion in a criminal case. >> that was certainly clear in the death penalty cases. >> there are even instances, tony was saying that some justice is listening to the announcement and thinks i didn't sign on to that. there was an instance where justice thomas was announcing his own opinion and he came across a line that he wasn't sure he signed on to. it was about synthetic drugs and he said i have no idea what that sentence means. >> so tony at the national law journal you write for an audience of lawyers. how does that affect, how does that make a difference in how you cover the court from the others? how does that affect what you cover and how? >> not as much as you might think. my previous newspaper was u.s.a. today so there is sort of a dramatic difference between it and the coverage there and where i am now. mostly in terms of length. when i first started at u.s.a. today, this is even before joan went there 600 word story was really long. that was -- so you would summarize a supreme court decision in 6700 words or 400 words or and that's a challenge. but still, even now that my audience is mainly lawyers at the national law journal, not every real estate lawyer knows about securities law or criminal defense lawyers don't know about erissa. so you still have to use plain english as much as you can. and although i can sort of -- i can use habeas corpus and not have to define it in every story, so there are some advantages. >> what was the other story you had a chance to write this year? >> i think it was the saga of howard shiply, a lawyer with foley and lard anywhere. it was the first time in years where the court threatened to discipline a lawyer for the sert petition that he wrote. and to make a long story short, this is howard shiply filed a petition in a patent case which that's already a challenge to make understandable. but it turns out that his client his client, a german industrialist who was not an english speaker, insisted on writing the petition himself. and when the lawyer said, you know, we really need to change this he said no. and the lawyer decided to go ahead and file the petition anyway. and it was complete jib risch. it was almost it almost ill legible of acronyms and all sorts of things you would never want to subject a generalist court to. and the court threatened to discipline him for it. make a long story short, he hired paul clement who was able to fend off the discipline and the supreme court discharged the show cause order and but they did issue a warning that the lawyers really have to use plain english in their petitions and they also can't delegate the task to their client. but it just seemed like an incredible story of a nightmare client telling the lawyer you must do it this way. and there was some debate that other lawyers said, well, the client doesn't rule. the lawyer has to ethically has to file the petition or file a whatever document that is understandable and you can't just let the client rule. but it was -- i also had the chance to interview the client. he was -- i e-mailed him on an off chance that he might be willing to talk to me and we met in person at national airport. he was on his way back to germany and he said how terribly sorry he was, he's never going to write another brief again. happy ending. >> also, i don't remember this happening before. but it happened this term. the court granted a sert petition for a guy named chin suing the city of baltimore. they're very proud of the fact they have this very thorough process, all the clerks to go over the briefs and the sert petitions and sort of check them out. and you remember, there's like -- they grant less than one out of 100. so they grant chin. and then no one was able to find mr. chin for months. they couldn't find him. and i would have thought one clue was that this is an unusual situation. he said he bought his house in baltimore for $900 and then they knocked it down without telling him. i would have thought, i know prices are not high in baltimore but $900. anyway, to make a long story short they couldn't find him. by the time the argument come they dismissed the knocked it down case. and then -- >> he hires paul. >> right. >> lesson. if you're in trouble in the supreme court, paul clement. >> but didn't paul -- >> this one didn't work. they weren't having him back after that. >> i talked to a lawyer for one of the legal clinics who said we should have just said we were representing him and taken the case. the guy was gone. for one of the legal >> in addition to briefs that are written in sort of half german like the one that you wrote about tony, the court itself has had some stuff and opinions this year that seem to be pushing the edge of legal writing a little bit in them. in yates against united states, justice kagen cited dr. seuss one fish two fish red fish blue fish as legal authority for some proposition that a grouper is a tangible object. and in the spiderman case she cited spiderman comics and quoted from them. does it -- is the court just getting more informal sort of across the board? is kagen an outliar on this? and is that sort of changing the atmosphere around there? >> the chief justice seems to be picking upbit in that writing style. in the case decided monday he had the phrase what chumps! but still scalia is still the world leader. after hinge he made up the term jigry pokery. >> that exists. >> argueo bargo also? but there's a delicious twitter feed which talks about how he might rewrite the names of children's books. i liked charlie and the closely held religious chocolate factory. >> also showed his age just a little saying in one, just consult the nearest hippie. and that's sort of another hash tag too. the nearest hippie. >> also showing his age somewhat, i think. >> i thought it was interesting, too, though that the chief justice did that in the same sex marriage dissent where he was talking much more directly to -- he said don't celebrate the constitution. it was a very sort of direct message in a way that i don't think i've seen him use before. and that does seem a little kagen-esque. another big part of the answer to justice kagen is she's the junior justice. she's not going to get the affordable care act decision. she has to have fun with what she gets. >> but don't you think day to day and week to week, i think john roberts and elena kagen are just terrific. both of them write very clear easy to read sentences. sometimes they're funny, sometimes they're humerous, whatever, but both of them are very good writers. >> and that really shows up in the first part of the decision where they lay out the facts and lay out the legal principles. and when you've read them you actually understand what's going on, which you don't necessarily always say about supreme court poibs. >> speaking of not nellsly -- necessarily understanding there's a category of question i try to ask. i can't exactly ask it this year because there wasn't a good example so i'm going to use an example from last year just as a way to get the question. how do you cover especially in five minutes a case where the end of the syllabus reads like this. scalia j announced the judgment of the court and delivered the opinion parts one and two which were the court. thomas and alito joined as to parts 1, 2 a and 2 b 1, and zpwinsberg sotamayor and kagen joined. ginsberg sotamayor and kagen joined. alito filed an opinion concurg and dissenting in which thomas joined. and you've got three minutes to write something. how do you manage? >> that was from last year. that was the utility air regulation group. the e.p.a. case. >> that's the one i would like to do the rehnquist suggestion. we'll get to that one tomorrow. >> you do your best to report the bottom line. and then you have to parse through b that. i remember ages ago there was one of those renditions with everybody joining this part and that part and david suiter disappeared. there was no parts that he ended up with. but it's -- that's -- that actually usually there are a couple each term like that but usually not ones that we need to report immediately so fast. you know you can take the time to figure it out. and this is such a reading job. people think of what kind of reporters we are in washington, d.c. and so much of you are b has to do with taking out a yellow highlighter and take going through the opinion. >> the one in the health care case where john roberts writes the opinion that says this law cannot be upheld under the demers clause. and then another section but it can be held up --. there's the potential for all of us to rush forward with the wrong story. and there was nothing like that that i recall this year. >> i thought the thing this year that was top and i don't know the answer, maybe you guys do. but i don't think anyone knows the answer yet. it was the e.p.a. case of this year where it didn't exactly strike down these toxic emissions regulations. it did say that they had adopted them improperly by not considering costs but it didn't -- it said they don't have to go back and do a whole cost benefit analysis. so they sort of sent it back to the lower court. and i think until the lower court acts it's a little hard for any of us to know exactly what by not considering costs but it didn't -- it said they don't have to go back and do a whole cost benefit analysis. so they sort of sent it back to the lower court. and i think until the lower court acts it's a little hard for any of us to know exactly what that decision means for those regulations. >> and the other thing about that one. we had to worry about that. lawrence hurley who was writing it had to figure out how much you -- what kind of a blow it struck for these regulations and the majority itself said exactly what bob was just repeating. that they weren't actually striking them down. that they were saying ok go back to lower court to decide whether they can stay in force. but elena kagen used "struck down. " so you're like, hmm. but it's the majority view that prevails. >> so in a complicated case like that which had to do with how e.p.a. regulates power plant emissions differently from how it regulates other stationary source emissions that's about as much as i can tell you about it. but how much preparation do you guys do in advance so that you sort of know the underlying law, you know the -- how the e.p.a. went about making its regulations, how much of a head start can you get on stories in specialty and technical cases? >> you try to be ready in all of them. the whole point of the job is to spend months of preparation in anticipation of a few days of crazy work. the environmental cases are easily the hardest. and the court tends to be less scruteable in those cases than in other cases. but you do what you can to get ready. >> it always feels like final exam week in college. cases than in other spend the whole spester studying this and that and regurgitate it at one time. the good thing about a case like that though is we get a chance to look at it closely when it comes up to be granted sert. and then it comes up three months later during the argument and then three months after you have to write about it. so i did try to immerse myself in that. as you know the e.p.a. and clean air act cases are very complicated. but it is the case that i think by june comes around you had a pretty much a good sense of the bottom line cases are very about what this is about. this was an unusual case in that this regulation was 25 years in the making. it was in the clean air act of 1990, congress -- here's a list of 186 hazardous air pollutants. go study them and regulate them if it -- whether it's appropriate and necessary for the public health. now, you wouldn't think that would take 25 years but the clinton administration spent a long time doing it. they had the regulation ready to go. clinton left office. bush came in. they pulled the regulation. there was litigation. the court said touf do this. and obama's people came in and proposed the regulation. it's supposed to go into effect this year and the supreme court says sorry you should have considered costs from the beginning. try again. that's the short version. >> the other thing most of us held is colleagues from the environmental beat. so my story ran. they bring a specialized expertise to the subject. >> but i think as you've probably heard all of us say a little bit the preparation and the sort of study is what makes these reporting jobs different i think from any other reporting jobs. i mean, i did a lot of other things. and it was rare that i would ever leave work that i hadn't talked to somebody on the phone. and now it's quite common that i leave work that i've never talked to anyone on the phone because all i've done is read and read briefs and read the decision blow. and try to familiarize myself with it that you can then ask an intelligent question of someone. but it really is an incredible amount of just sort of getting ready and getting up to speed. it's what makes the job though a fantastic job in that you learn about all these really interesting issues that if you were in some other beat you would just be doing that. and it's learning about all these issues that really is what makes the job i think so fascinating. >> sounds like you almost did go to law school. >> you wouldn't like to be out covering donald trump on the campaign trail? >> it makes me think it was a good decision not to go to law school. >> people are often quite surprised to learn that there's no advanced word on what decisions will be coming down which day. just how much just what do you know that the tourists sitting in the back of the courtroom doesn't know and when do you know it? >> all we are told is whether it's a regular day or a heavy day. and regular means four opinions or fewer. heavy day is -- >> we don't even know exactly what that means. >> when i first started covering the court they would tell you there are three decisions coming today. but then they stopped that because one day they said three decisions and only two came out. and we knowsy reporters started sniffing around to find out what happened to the third so they issues that down and just made it more general. but the court -- not every court keeps it a secret as to which decisions are going to come out on which day. the california supreme court for example will give a public day's notice or two about which cases are coming up. i've heard just two theories about why the court doesn't do this. one is they want to protect their right to pull back a decision at the last minute. so they say that the same sex marriage decision coming out tomorrow and it doesn't. that will cause speculation. the other one is that they have concerns that even the announcement that the case the exxon valdez case is coming out tomorrow that will cause stock, the markets to fluctuate on exxon mobile stock. and they don't want to do that. although you could speculation could happen anyway. so those are the two theories i've heard. >> we do know by process of elimination what's coming on the last day and there are very sophisticated people in the press whom whom i a am not one who may be writing that decision. >> i would like to say one of the great things about the court that goes unappreciated and i think some of us, we know it is that i think the court is one of the last institutions in washington that plays it straight and doesn't leak opinions in advance, gives everyone the same opinion at the same time and do with it as you may. over the years over the decades that i've lived in washington with each administration news has bment -- become more political. and that for example, the white house doesn't almost announce anything that hasn't been leaked to a certain group of reporters who will put it out in a more favorable way. and every one of the agencies does that. when the attorney general is going out to give a speech, on some legal topic, the -- this most recent attorney general and the attorney general before that -- i don't want to point to one administration or the other -- they would say, look attorney general is going out to san francisco to give this speech. you know, you're a fairly cooperative good reporter. we'll give it to you but we won't give it to her or to him. now, that creates in my view a sort of built-in corruption in the news business. which is if you want to be on the in and get copies of and alerts about the announcements, you have to write favor fairly favorably about the secretary of defense or attorney general. if you write critical stories they're going to say we're not going to alert you. i think that creates a sort of i'm glad i don't have to participate in that, because you basically would say if you're a reporter, do i really want to give the agency a hard time for this announcement? because next time i'll be screened out and my competitor will get the story and i will look bad. so i really think the court's got this very old fashioned and i think very good system that they put out the opinions at 10:00, they give it to everybody, they don't leak. you don't read it the weekend before. the supreme court is going to do something on monday. sources have told the blah blah blah. you never read that story. and i think it's one of the great things about the court and the way they handle the news. >> joan, i mentioned that you had recently published a biography of justice sotamayor. tell us a lilt about that. what kind of access did you have to her? what limits did she put on that access? how did she like the book? >> this one wasn't a biography the way the books i did on others were. more of a history of how she ended up getting the nomination and the trajectory of her rise matched with latinos in america. i dade lot on the confirmation process, found out a couple of interesting facts including that she and john roberts had crossed paths back in 91 whon she was first nominated to district court he was in the hw bush administration in one of the screeners. so that's how they first met. and also found out a little bit about, again, just how she was positioned along the way. and relevant to the fisher case that we have coming up, found out a little bit about the back story of how she worked behind the scenes in the first time the justices considered the affirmative action case. so it was a little different. and the access, she allowed me to come talk to her. she would let me use what she said but it couldn't be quoted in terms of specific interviews with specific times the way i did with justice scalia. when you think of justice o'connor sotamayor, scalia you wouldn't think it was scleeya who give me the unfettered access. it was a little bit of a hybrid. >> so not only have we had a biography of justice scalia this season we had a play at unfettered access. it that? and want to give a mini review? bob? >> well, i thought the actor who played him was astounding. there were times if you closed your ice and listened to him it was like you were arena stage. the originalist. did you see in the courtroom and hearing scalia's voice from the bench. he captured him spot on. and i enjoyed the play. my only sort of quarrel with it was i thought the setup for it, hiring this liberal clerk, i thought that she was so incredibly rude to him at the beginning that no way that anyone would have hired someone who had been so rude. not just scalia. and so i thought that setup was a little odd. but i thought it was good. >> in addition to a play we now have an opera that's going to have its world premier a week from saturday called scalia-ginsberg. you wrote a piece about them and the opera about ten days ago. i bet a lot of people in the audience don't even know about this. >> the fellow running this called and said do scalia. and so i you normally cover opera? he wanted me to come out and write about some other operas. i said no, i don't. i was -- i did write a story about a lot of them. my cheegs have written a similar story. about this interesting odd couple relationship that they have been good friends since the early 1980's. and i got a lot of i want resting e-mails about this story because i thought on the one hand one really good part of washington that you don't see any more, that is that they have been friends together, they're in the opposite sides politically, ideologically, but they really have a warm feeling for each other. it goes way back. it's a family, it's a personal. they've traveled together. they can joke together. this thing at g.w. scalia said ruth's feminist friends sort of made fun of her because we were on this elephant and she was sitting behind me and she leaned up and said, well, i was told it's a matter of distribution of weight. and they're sort of entertaining together. but the truth is they have the absolutely opposite views on legal matters and it doesn't seem to change. they talk right past each other. scalia will be but the truth is talking and ruth says that argument doesn't work. you know, he'll say we're not going to agree on this. so i just thought there were a lot of fun to write about. as far as the opera, this is -- ruth sent me the lob rhetto and it's just wonderful to read. foot noted all of it with about tull citations of their statements. he's used their words. scalia is singing about how you justices are blind you find things in the constitution. and then he gets imprisoned for excessive dissenting and then ruth ginsberg breaks through a glass ceiling to rescue him. itch not seen it yet it's july and 19 but it sounds like -- maybe i will switch to covering opera. it sounds delightful. >> i think a line that i got from reading your story was that the composer of the opera said that a lot of what he heard scalia saying dissepting from the bench reminded him from a lot of these rage line that operas. >> he was a music major at harvard and at yale. and then went to law school. and he actually says he was reading these and said here's an op ratic character. so that was the origin of the opera. >> while we're in a theatrical mood i mentioned that you served as the mar shlt of the supreme court of la mavena. did that give you a new perspective? >> all it did was make me into a hypocrite for when i criticize the justices for taking part of this kind of frivolousness. i'm not sure everyone knows what i was talking about. >> they've -- the justices are out and about constantly. one of the things they like to do is to have mock trials where real supreme court advocates argue fake cases about whatever. this was a case where tom goldstein and carter phillips argued about whether he needs to be committed before ginsberg breyer of the d.c. circuit. and you know, they're cheap laughs. they raise money for the sharke spear theater. i don't know what the hell i was doing there. >> but you did a good job. >> joan, i also mentioned introducing you that you were a finalist for the pulitzer prize this year. sorry you didn't get it. it was for a series called the echo chamber. why don't you tell us what that was about. >> well, it was about the lawyers who appear before the court. we've mngsed a couple names repeatedly today including paul and others. i think all of us, many of you and us noteded that we've had so many repeat players coming up before the justices and having success with their petitions for sert what we decided to do was to actually try to measure this. our data team went back through 17,000 petitions and isolated on 66 lawyers who had a remarkable success rate. going back over a decade we found that fewer than 1% of these lawyers had 43% of the cases before the justices. and that 51 of these 66 lawyers actually had very deep corporate ties. so we were looking at who these people are why they are so successful before the justices and then raise the question whether the justices have add add new criterion to their decisions on which cases to take and whether it goes to the merits of the lawyer arguing not just the merits of the case. so we were able to do a lot of data work. then i went and interviewed the justices about this saying are you leaning toward repeat players because of their skills and expertise? and possibly ignoring lawyers who aren't as polished but who have very good cases on the merits for getting sert granted? and they basically said we like it the way it is. we are a professional court. we like the professionalism of these repeat players. we think it's important that we have the highest quality law yering possible. and across the board liberal to conservative felt like this is the way it should be. then after the series ran, justices scalia and kagen happened to be on stage down in louisiana and someone in the audience asked about this reuters series and they said that's true. we felt it was important to at least let people know what happens up there and how the truth is your chances are better with one of these folks who cost a lot of money at there and how the truth is your chances are better with one of these folks who cost a lot of money at the sert stage. >> unless they're doing it pro bono. >> which they tend to do once a case is taken. the sert stage is the heavier lift than the oral argument stage because you're competing with thousands of cases each term. and the justices themselves say we know it when we see it. we know a good case and we're not missing. we are not missing issues. if it's a really good important issue it will be back. >> do you have a sense of what it costs to hire one of these guys for a sert petition? >> if you're -- yeah. some, especially the group we have out there now practicing who are former solicitors general they can charge in the thousands or more per hour for the time spent on a sert petition. and even to some, especially the group we have out there do an ameekcuss can be five figures. so in some cases are referred to that somebody might do it pro bono if they think it's got a good chance and they then will have the opportunity to argue before the justices. this of the lawyers drifting toward certain high quality lawyers has occurred at the same time that the docket was contracting that they're hearing fewer and fewers in the past they would get all the petitions and then decide what do we want to grant and then they would grant but now they're holding over that decision for at least another week to decide do we really want it? the clerks are risk averse and the justices themselves. decide do we >> [inaudible] >> say who you are. i think people will know. [inaudible] >> yes. great legal writing guru. it depends. there's two kinds ofications. the kind you have to write immediately. affirmed or reversed. and then my predecessor gave me some good advice. start with the dissept. the dissent tells you what's really going on. if there's nothing better look at the beginning and the end of the opinion itself and various sections of the opinion. >> i think that's true that it ends up sections seem to be where they sum up a little bit. that's the place to look for a quote if that's what you're doing. the other thing if the end of this term all three of us four of us, five of us who had to write right away stayed downstairs rather than going to the courtroom, but the good thing if you can go to the all three of courtroom you hear a summary of the holding in the case. so you've got that in your mind pretty clearly. you know how the case came out, the reasoning for it. and so then as adam said, when you get downstairs you can quickly look at the dess sent to see what the other side of the issue was. so it's very helpful if there is the time to go to the -- to go upstairs, let them explain it a little bit before you have to get down. but i do -- i do confess to people. i say if you've read my story on line right after it happened that doesn't mean i've read the opinion. it only means i've gotten enough that i can write this piece. >> for myself, we're downstairs. they pass out a copy of the opinion at 10:00 and say justice kennedy has our opinion. i take it and firs of all check the votes. because that really whether it's a 5-4 or 9-0 opinion. and then check the syllabus for the sort of main headings as adam said you want to know affirmed or reversed. check the dissent to say whether this is a big decision or whatever. and then start looking with a yellow pad for some quoteable lines. usually at the beginning sometimes at the end. and at the same time i like to listen to justice kennedy is saying upstairs. because that helps. and reading it helps at the same time. and i would like to think in about 60 seconds or 90 seconds i've sort of decided what i should go write. >> my question stems out of the earlier discussion with regard to clarence thomas' opinions on one of these cases. so i feel like whether a comment is inappropriate depends whether you feel it's inappropriate depends on your familiarity and standard issues. how do you deal with this when knowing that you're dealing with a wide range of familiarity with the law as well as knowing these are certain things that people may latch on to? >> i'm not sure that kind of aside is a legal point. i'm not sure he's making a legal point. i think he's making a human or moral point or inappropriate point or kind that a talk show host might make. i don't know if it needs a lot of context for people to decide whether they agree with it or not. >> the question i have is about trends that you may see in the court with respect to starie desiceyoifs. i think justice scalia wrote a dissent in chelled have thrown out the dormant commerce clause. do you see any sense whether they tend to weigh that more or less than they used to? >> the data seems to show that this court is no more activist than earlier courts across two dimensions that of overturning precedent and striking down legislation. only a couple times each term and this term was no different. >> i don't think it did. certainly the chief justice brought that up in his dissent and went on about it to some length, i thought. will it be before them in a couple of years? i kind of doubt it but there will certainly be a lot going on in the lower courts about it. i think there is a pligmuss marriage case that is pending, that would come their way from before it was decided. so i think we all believe that the next round of this is going to be about religious exemptions and bakers and florists and what these state laws do that say that people don't have to perform some of these tasks that they don't want to to aid in same sex marriages. it seems to me that's probably the next wave of things. >> the thing that you see following the court over time is that these big changes in the law are a long time coming and when only after there's been a big switch in public opinion. two examples we've talked about was the notion of the right to bear arms. back in the 70s burger made fun of that but over time the whole notion that the second amendment wasn't about militias it was about a right to bear arms became so much sort of the public's understanding that by the time the supreme court finally took it up it wasn't a surprise for the first time they ruled yes it does. as you know, you've lived through it, the whole notion of gay marriage would have been a surprise and a shock in the 80ings or the 90s but by the time they finally did it was not like new news for us. it was sort of an accepted understood but not everybody agreed. but -- and that's why it's always a mistake to say the logic of this opinion means that. you know. well, we'll know 10 years 20rks years from now what it means. it will be a while before polygamy comes back, i think. >> famous last words. >> on that note we have a 90 minute window at c-span. so thank you all for coming. i hope to see you again next year. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2015] >> good afternoon. we're always welcome to send questions or comments to us simply e mailing speaker at heritage.org. we will of course post the program on the heritage home page following today's presentation for your reference in the future. hosting our program is roger. director of our richard and he willen center for religion and civil society. he earned a j.d. from harvard law school and an m.s. from carnegie mellon. >> so glad to be here. so glad to see such a large turnout for a discussion which may be the defining issue of our generation. the future of marriage religious liberty and the law. as you know, the supreme court recently issued its decision was a monumental one has deep implications for the future of our society. we've had a significant setback . all americans who believe in the constitution limited government democratic control and marriage of the union of one man and one woman should pay close attention. the new supreme court got it wrong. today we have a distinguished panel to give us perspectives and help inform our responses. we have plfment gene sher a weashed-based attorney. he priestly served as associate counsel to the president. he has argued dozens of cases. every federal government circuit and numerous states. he is a graduate of byu earned a j.d. from yale law school holds a master's degree in economics. dr. ryan anderson. researches and writes about marriage and religious liberty and is a willing e simon research fellow at the heritage foundation. he focuses on justice and moral principles, health care and education, and has expertise in bioethics. filed an amicus brief. the book which he coauthored with mr. robbie george is what is marriage? man and woman, a defense cited twice by justice alito. the author of a fourth coming book. available for preorder on amazon and will ship in a few weeks. ryan received his bachelor's from princeton university. he earned his doctorate where he also received his master's degree. terry is chief counsel of judicial crisis network has written and spoken on a number of issues. filed briefs in numerous high profile supreme court cases has testified before congress and regular contributor on national review on line. if you have any interest on the court you have probably read her materials or seen her on tv. previously a law clerk to clarence thomas and to u.s. district court of appeals for the d.c. circuit. graduate of harvard law school, duke university, holds a master's degree in linguistics and also married to the luckiest man in the world. me. please join me in welcoming our panelists. so we've read giant decision over 100 pages with dissents and i'm sure there are many take aways but i wanted to focus on three. what are the big take aways that you folks saw in terms of the law religious liberty and marriage culture? >> thanks for being here first of all. it's nice to be on a panel where i don't have to tell the introducer how to pronounce my last name. i'll start by talking about basically what the legal basis of the decision is and we can talk about how it plays out. justice kebbedy's decision wrote for majority as you know was based fundamentally on the idea of subtantive due process and the fundamental right to marry. i actually would agree with him that there is a fuppedmental right to marry. something recognized by a lot of cases. where laws in the state of virginia were struck down. however kennedy does get it wrong because as he actually acknowledges all the courts cases that talk about a fundamental right to marriage take as a presupposition that marriage means a union of a man or a woman. and it's dangerous when we redefine the terms of the -- that we're actually dealing with because you can easily shift the meaning. for example, if we were to take -- we have we a freedom of speech and we define speech as something else. all of these terms have to carry actual content. so the challenge here is that he redefined the term marriage in the process of attempting to uphold the fundamental right to marry. the way he did so is by looking at some of the cases the court decided previously and intuting four principles that he viewed as central to this institution of marriage. one is that it was an expression of individual autonomy through personal choice. one is that it was a unique two-person union that gave particular importance to individuals. the third was that it safe guards children and families and particularly draws on the rights of child rearing, procreation, and education. the fourth is that it forms the keystone of our social order. now, there are undenyably themes of all these in the previous supreme court literature. however, kennedy seems to cherry bicked which principles he looked at with the one goal in mind of coming to his conclusion. doesn't matter if it's a man or a woman. versus a same sex couple. therefore it's not really defined by that. but when you assume by assuming the conclusion already he chose the principles that would support it. he didn't actually in my opinion choose those principals to overlap. he cites to the child rearing procreation. it is simply difficult to understand how a particular right to to procreation has nothing to do with an opposite sex union when that's obviously how procreation happens. so there's a real problem with justice kennedy's kind of bait and switch on this. he takes things there as part of a definition of marriage, isolates only those and not even only those but those that don't have an obvious connection to opposite sex couple union. then said marriage isn't really about a male-female union if it's really just about two people having a unetive relationship. additionally after deciding under the due process clause this is a fundamental right he then claims that the equal protection clause is implicated. it's true that the court's discussions are very intertwined and can be confusing at times. but he didn't follow analysis. we know that when we look at traditional equal protection law there's different levels of scrutiny. we can give certain distinctions we're making, require strict scrutiny. others have intermediate scrutiny on the basis of sex there are things the government can take into account. he didn't talk at all about what level of scrutiny we should be giving. so that's i think a line of cases coming out of this. there were four major dissents in this case. they all tended to join each other's in the process. in large part all the dissents touched upon a few major themes. one is it's not correct. that whatever your policy views on the issue -- i actually would wager even among the dissenters there would be policy revuse whether they would vote for someone who says i want to create same sex marriages. i think they all agree that as a legal matter the constitution is not where that happens. the constitution is completely agnoastic as to how marriage is defined. if anything, the windsor case that happened a couple of years ago got it right on this point that the states have defined marriage law. so that's one feature. another is talking about concerns about the democratic process, concerns about the way this the decision was reached and how that undermines the ability to have this debate. so we were all talking about this issue. there were state laws, constitutional amendments proposed. and that has been cut off by this decision. kennedy alluded to that. there's been a lot of -- we've had this discussion. we're done. time's up and now we're going to make the call. but i think the dissenters would have said the court doesn't get to now you've had enough talking when it's an issue that the constitution leaves open. even if you're sick of hearing the debate you don't get to cut it off. and then finally i think some of the others are going to talk all highlighted their concerns about religious freedom coming out of the decision. kennedy's decision alluded to the fact that as he said this is going to be an issue going forward but it's taking things out of the process means that now our backstop is the courts. it's the courts. to highlight thomas is my favorite justice he's a wonderful man as well as very principled judge, i think he pointed out really two important errors. first it assumes that dignity is something that is conferred by the government but in fact if we look at our declaration of independence and constitution itself, is an 8. -- innate and not something the government can confer or deny someone. even for example while there was slavery in this country that doesn't mean that those who were enslaved lacked dignity because the federal government was failing to recognize it. the inversion of liberty that our nation and really the angelo american legal tradition has a history of liberty being freedom from coercion not being a government grant of benefits. that's what happened in this case. the idea of the government conferg the benefit of marriage. actually increasing people's liberty. so i will hand it back to roger. >> you mentioned the dissents. there were four that actually wrote and spoke on religious liberty. what do you think about the extent being for them and specifically on the religious liberty topic? how much weight is to be given? >> i think what's interesting to me about the decision including both the majority in the dissent is the extent of the recognition that there really is a conflict between same sex marriage or institutionalized same sex marriage and relidges liberty. you might wonder why is that? what a lot of people don't seem to recognize or remember is that all three of the major abrahamic religions, and indeed all other major world relingance have for millenia they have taught that a man-woman union is not just an incidental feature of marriage but is central. and that of course is different from some religious teachings about interracial marriage which of course was the issue in the loving versus virginia case. i spent my high school years in the south and never heard of any religion defined it as a defining feature of marriage. there are some who thought that was preferable. but i'm not aware of any small or large relidges body hasr thalkt that as the feature of marriage. so that's different from the situation that we have with respect to same sex marriage. and there are a few religious groups that have sbroken from that tradition. if you look at the number of people that claim to adhere to those religions, it's a pretty miniscule percentage of the population of all believers. so there is this enormous conflict or at least enormous potential for conflict between same sex marriage in general and the decision and religious freedom. that may well be one reason that justice kennedy sort of went out of his way in numerous places in his opinion to try to suggest respect for the religious viewpoint on this issue. and i think of all the opinions that have been written in the court of this litigation over the last couple of years that have ruled in favor of same sex marriage kennedy's opinion is probably the most respectful of religion. so those of us who care can be grateful for that. and just for example kennedy did not rule that traditional marriage laws were based on animus or bigotry towards gays and lesbians. he did not rule that traditional marriage laws are irrational as judge pose never who used to be a considered a conservative judge ruled o not long ago. either of those would have been taken as a holding the opposition to same sex marriage summer in fact a manifestation of libertyry rather than being eam defensible position. justice not rule that kennedy also rejected the u.s. justice department's position that sexual orientation is a suspect class and therefore entitled to special rights and constitutional litigation. and that kind of a ruling would have created a whole host of problems outside of the marriage conduct. so those of us who care about religious liberty can be grateful that justice kennedy's opinion dodged some big bullets. but the opinion unintentionally i think laufpblged a number of grenades that are still in the air. and as i've thought about it i've identified 12 concreet threats to religious liberty. what i call the dirty dozen. in the very short time that we have i'm not going to try to explain them in detail but let me list them and maybe we can talk about them later. one of course is the issue that was raised by justice alito at the oral argument about tax exempt status and you probably remember that exchange between justice alito and the solicitor general. if we rule in favor of same sex marriage doesn't that create a risk? that believe in the traditional view of the marriage would have their tax exemptions re voked. and mr. brillie after initially appearing like he was going to try to dismiss the question decided that he needed to be frank and honest and said i can't deny that's going to be an issue. yes, it's going tow be an issue. so that certainly -- and it is going to be an issue. i suspect. and the fact that the obama administration has not done anything to walk back from what he said at the oral arguments suggests to me that there may well be beam who are actually planning to issue a regulation or some kind of a decision that would in fact deny trax exemptions to at least some that choose to adhere to the traditional understanding of marriage. and my first six examples are in the yar of what i call institutional religious freedom or religious liberty. that is the ability of religious institutions to carry out their self-defined religious mission. the other six are in the category of individual religious freedom so the second one is the an issue that justice scalia raised at oral argument which is the church's authority to have marriages performed by its pastors recognized by the state. and of course that's the standard practice now. any minister who marries people in the united states, that marriage is recognized not only for religious purposes but for legal purposes as well. and justice scalia raised the question if we rule that same sex marriage is required by the constitution, isn't that going to to set up a situation where churches that don't believe that a same sex marriage can be religiously legitimate, aren't they going to be that a same sex marriage can be religiously legitimate, aren't they going to be denied the ability to marry peep and have those marriageses recognized by the state? that i think is likely to be a serious issue over time. roberts during the oral argument raised the issue of religious school housing policies. as you probably know most religious colleges in the country have policies that they have special housing for married students. but in order to use that married student housing you have to be married in accordance with the beliefs of that particular religious college. and the chief justice raised the question aren't those going to be at least cast into doubt if we rule in favor of same sex marriage? and that's another serious issue. and even scarier prospect from my standpoint is the licensing area which of course is very important in higher education. religious colleges like every other college depend on their ability to get accredited by a wide variety in order for their students to get federal funding and in order for their students to be able to get jobs in a lot of professions. and so if same sex marriage is really the law of the land isn't there a risk that accrediting bodies are going to start pressuring religious colleges to recognize same sex marriages for all purposes on their campuses as a condition and we have seen a similar issue with regards to other religious organizations like catholic charities in in some circumstances need licenses to place children for adoption and those sorts of things. and cassdzlirk charities has already been force ds to withdraw from providing services as a result of licensing policies that told them in order to be licensed in our state to provide adoption services you've got to be willing to place children with same sex couples on equal terms with opposite sex couples. to do that would have violated the religious beliefs of catholic charities. that's going to bnl now a nationwide problem not just a state by state problem. and then more generally religious institutions constantly face the question of can we apply religious criteria in making employment decisions in deciding whom tro promote and all of that. of course, for churches and religious colleagues that athere to the traditional definition. obviously they want to be able to hire people who would agree with them about core issues like marriage and all those sorts of things. but the decision cast into doubt their ability to do that. at least in some circumstances. there's a pretty good religious exemption in federal law. but there are a lot of laws that don't have similar religious exemptions. so going to face a issue. >> you list a whole lot of institutions that i see as mead yating institutions. so i want to take the conversation out to the broader culture. if you could speak on how these are addressed by the decision. because kennedy does speak about the wider culture. >> the pro marriage is in the same position that the pro life movement found itself in after row v. wade. the work that needs to be done is in three steps that we kind of divvied up. the first step is correctly identifying this marriage ruling as traditional activism. we've never accepted row v. wade about the final word. in fact, it told a lie about the unborn child and it told a lie about our constitution. for 42 years we've been bearing witness the same thing that needs to happen. the second point which gene spoke to one of the first things was protect the rights of conscience for all american citizens never have to pay for abortion or perform an abortion if it violated their belief. so in the same wave the pro marriage movement will have to protect our rights not p to be coerced foot violating our belief that marriage is the union of a man and woman. step three is the harder more difficult long term program of bearing witness to the truth about marriage in a legal culture which has told a lie about marriage. every year on january 22 ged, hundreds of thousands of citizens come to the nation's capitol to bear witness about the truth of the unborn in pregnancy centers throughout the united states. silent no more. women speak for themselves. students for life. the list of groups that have sprung up in the wake of the row v. wade decision has been remarkable. there's been a concerted cultural effort. the question is what do we do on the marriage front? so we have to remind our fellow citizens of the basic fuppedmental truths which justice kennedy seems to ignore or obfiscate. justice kennedy, driving part of his opinion is his philosophy of marriage. that has no basis in the constitution whatsoever but it didn't come out of thin air. had her philosophy of marriage is the natural result of the past 50 years of the breakdown of the american family. it's the natural conclusion of the revolution. so it's only a culture that had the spike in nonmarital child bearing. the exclusion of no fault divorce in all 50 states. that 50 years later would even contemplate legally redefining what marriage is let alone having five unelected judges redefine marriage for the entire country. law professor at george mason university went through kebbedy's opinion and collected all the words that he used to describe what marriage is. the supreme court rules instead that marriage is about adults defining and expressing their identity. the avoiding of lowlyness and desire for companionship and understanding. nowhere in that opinion at all is there any discussion about a child's right to a relationship with both and mother and a father. the central defining feature what got government in the first place to commitment to each other permanently and exclusively. that showed her to have a mom and dad. never seriously engaged any of the arguments that jean was making. represented bote the state of utah and the state of idaho in their marriages cases. didn't engage the amicus brief. just to say in one throw away paragraph that it's a counter intutive argument. whether it's counter intuitive or not it's true. and the best way to see this is to think what happened after we redefine marriage with no fault divorce? serious reasons. it was supposed to be permanent was now being terminated. with no fault divorce you could file for divorce for any reason at all. we saw the divorce rate more than doubled. so what happens now? take washington, d.c. the children who live in georgetown are born into married families and raised to adulthood by their married. that won't be resolved in the next vote of congress. this will be a generational campaign, not that the next vote in congress or next election doesn't matter. they do. this is going to be something that our children and grandchildren will be responding to. >> so you mentioned a couple possible responses to the cultural issues. speaking more broadly and more immediately what are concrete responses that you think can be done near to medium term to respond to this decision to make sure that marriage culture is restored, law is restored. >> i will give one that i think is bothand that is a commitment to nominating and confirming judges who have a principled view of the constitution and of the law and have demonstrated willingness to stand up for that view when it's challenging and when they are under fire. because this is something that while obviously this is rebuilding culture, the next president will likely have maybe three supreme court nominations. we saw that last week's decision was a very close decision. this is not the only decision. we saw a series of decisions leading to this. it was lawrence versus texas decision in 2003. this won't be the last one in that series. it is important to have judges in the court that are going to be interpreting the constitution and make sure there is a president in place and senators in place who recognize the overarching importance of this issue. whoever is next in the supreme court will be there for decades and have generational impact has a life term and we need to make sure our politicians realize the stakes worth plopping down political capital on because all other issues they are doing. you look at doma. you have a great congress and signed by a president and then later have it undone by a supreme court. so whatever you do in all these other fields the courts ultimately have the final word on it in many ways or the final legal word in our system. >> i guess on the religious freedom front i would add a couple of things that could be done concretely. i think it is important to continue to press for laws that both the federal and the state level that will protect the religious liberty of believers both individuals and institutions from the various obvious problems that the decision creates. one is the first amendment defense act which was proposed by senator lee and also proposed in the house. i think that law deserves our support because at least at the federal level it would deal with a number of the issues that we talked about today including tax exemption issue and government contracts and licensing and those sorts of things. a lot of the problems are going to arise at the state level. we have seen the challenges of getting state level religious freedom restoration acts passed. and those would be very helpful if they could get passed. i think at this point it may be more productive depending on the state to get a more narrowly targeted law that just deals with the religious liberty fallout of same-sex marriage. so i can envision a whole lot of miniature first amendment defense acts getting passed in the states. and, of course, short of that many governors and some attorneys general actually have enough authority that they can mitigate some of the religious freedom problems arising from the decision by an executive order or memorandum to the people that report to them or what not. we saw governor jindal of louisiana do this with executive order that, for example, protects clerks and other people in louisiana from having to perform marriages that would conflict with their religion-based conscience. we saw the attorney general in texas issue a similar directive to the people who report to him that we are going to protect the religious liberty of the people of texas wherever we can. i have a whole book full of ideas of what we can do at the cultural level. >> available on amazon right now. >> i get a nickel if you purchase it. let me mention three. all will draw parallels. the first is we should conduct rigorous social science into family struckturestructure. what we know is that a child who grows up without a father whether with a single mother, a cohabiting couple, divorced family, all of those family structures produce poorer outcomes for children. we know this beyond a shadow of a doubt for 40 years of consensus. why would it be being raised by two mothers would be the exception? why is it father absence matters to the child being raised by cohabiting couple why doesn't it matter to the child being raised by two mothers? that is counter intuitive. i suggest we give the space to conduct rigorous investigations into family structures and let the data speak for themselves in the same way ultrasound science was best friend in pro life movement. the second is we need to find better spokes people in the same way silent no more, women speak for themselves were some of the best spokespersons on the abortion debate i think some children raised by same-sex couples and gay and lesbian people will be some of our best advocates. both groups filed amicus briefs and neither group was acknowledged by justice kennedy. there were passionate letters written. they love their two moms and wish they would have had a father. their argument was that redefining marriage institutionalizes missing parents and it is not just a result of human frailty but institutionalizes it. there was a brief filed, doug divorced his wife and came out of the closet as a gay man and realized he committed a great injustice. the children needed a mom and a dad. he reconciled with his wife. he makes an argument titled i'm gay and i'm against gay marriage. these are some of the voices i think will be helpful. the third is that science and philosophy are important but they are not the only thing that is important. here beauty and holiness and goodness motivate people more so than philosophers. i speak as someone with a phd in political philosophy. i think unless we live out the truth about marriage and bear witness about the truth about marriage our lives will never rebuild a marriage culture. it is important to rebuild the fact that gays and lesbians did not cause the break down of the family. redefining marriage will not do anything to strengthen the family but will likely make it family weaker. i would say the third thing is look what the pro life movement did. it was setting up centers and project rachel, having all of these sisters for life, all of these outreached to women in crisis pregnancies. we need better marriage prep programs and better programs to help people both understand and live out marriage in their own lives. >> so we have time for questions. there will be microphones on either side. the event is being broadcast. i ask that you identify yourselves and the organization you may represent and keep your questions brief. please make it end with a question mark. >> hi. what about the possibility of the term limits for the supreme court? is that something that could happen? there are people that suggest it and it would certainly open up the idea that we wouldn't have people in the position of power for a whole lifetime? >> that is certainly something raised before. i think it is really interesting idea. it would be challenging to implement it because both sides would be worried about who is president when term limits kick in. but i think if you could get a bipartisan consensus it is definitely something to consider. what would worry me about that and other proposals is how we can exert more limitations is i would worry about anything that emboldened the president or senators to say we have this back stop here. we have a check on this. we don't have to pay as much attention to vetting candidates as well because we know they are only there for a certain amount of time. if there were a term limit it would probably be a long one but i think that never can minimize the importance of getting it right the first time and doing everything we can to make sure we have principled judges in place. it is certainly a thought, just not something that would require in the short term. just a quick lamenting that kennedy replaced boric. if children have a fundamental right to mother and father can you think of legal standing to create basis for suit that a child has a right to a mother and father? just thinking out of the box. >> i could see this. justice kennedy several times in his opinion says that the court's opinion is based on new insights into marriage. i could see a situation in which the court has a different composition, chances are the next president will have up to four seats to fill. three of the justices will be in their 80s. and if there are new insights into marriage and new insights into the rights of children that could be a possibility for the court to reconsider. i would think the outcome of that would be that we don't know any better than the people so let people decide policy for themselves. if he continues doing social science research if they keep speaking out and that gets the attention of litigators and the attention of justices, this isn't the last word in the same way we have seen in the abortion context having ultrasound and new insights has allowed us to have better abortion law. i wouldn't accept this as the final word. >> i preface my question with a brief quote. be not deceived god is not mocked. and it seems like the government of this world is sort of strengthened by even sowing chaos by confusion over meaning of words that look to regulate more. it's all kind of a lie. i wonder if three of the great lies of activism starting with marriage and back and looking at abortion and maybe the nature of money when the supreme court began to imply that we need isn't it even the decisions about credit, ious fueling the whole power in washington that much of the country will want to take back. and the states really arguably can under section 110 disempower washington. and, you know, let truth reign in faith. >> essentially who decides the nature of truth, is that a good way to recapitulate. >> in our legal system i think it's best to focus on now that some of the practical things that we can do in the short term. those are theoretical possibilities, i doubt any come to fruition. what we do know is that in the immediate future you know, even looking down to the hope of saying this isn't the final word legally, that's a very long-term project. in the short-term there are real and immediate concerns about religious freedom we need to focus our energy on. what are the ways, whether it's through executive orders, whether it's through legal legislative efforts, to try to bring that back now to allow the room for everyone to have a free understanding of where truth initiates. >> and on that i would just have -- you mentioned redefinition. we're seeing that the obama administration has redefined the free exercise to worship. that has to be something not allowed to continue, not allowed to proceed. the founders wanted to exercise free exercise, freedom to live out your faith monday through sunday. not just sunday morning in the four walls of your chapel. we've seen it be reduced. this is why they sued -- why the owners of hobby bobby had to sue the government because they were saying, no once you go into business you lose your right. they're arguing once you open up a center to care for elderly, you lose your rights. this is why the little sisters of the poor are still in federal court suing the obama administration. they're free to pray however they want to in the chapel but if they want to take care of elderly people they have to pay for abortion causing drugs. that's how ridiculous things are. we can't allow the redefinition of religion and religious liberty. >> we can't allow the -- you can ride a treadmill in your church but that's the extent of your ability to freely exercise your religion. >> over there. >> hi, my name is jennifer kirk. i work for the heritage foundation. i know this is extreme. i'm just curious what your thoughts are in the concept of completely removing all government, federal, state local involvement in marriage, all tax benefits, all anything and allowing it to be purely a religious institution as it was a millenia ago. >> i don't think it was ever purely a religious institution. i would question the premise of the question. we've seen political communities have always been recognizing and to a certain extent regulating the marital relationship because it's not purely a private or religious institution. it's not like baptism and bar mitzvah. those really are purely religious personal institutions. the state's in the marriage business because while your church can marry you, your church can't marry you or enforce alimony payments or child support payments or settle custody battles. you either have the opportunity of the state setting up an institution to do that at the front end or growing government beyond any imagination by doing each and every one of these cases one by one. so, if you get the state out of the marriage business on the front end, you will simply explode the reach of the state on the back end when doing a case-by-case basis of regulating these disputes. much better to have the state recognize an institution and civil society marriage than have the state either redefine it or fail to acknowledge it. >> and let me add one point to that, if i may. there are a lot of people in this country who are not religious, so if you say marriage is only going to be a religious sacrament, we'll get the government out of it entirely, there will they be be no -- for a majority of the population, there will then be no institution that is encouraging young heterosexual couples to get married either before or even after they have kids. and so i think that would -- that would exacerbate the social problems that we've had with fatherlessness especially. if we said, well, we're -- if we said, now the government's just going to throw up its hands and get out of the marriage business all together. >> so, we got a question from carolyn online mailed in association of mature american citizens. is constitutional amendment defining marriage between one man and one woman politically feasible or worth while for advocacy groups to pursue. >> it would be wonderful if it could get passed but it's â >> the politics of it, i guess we'll see. but at this point at least with the current makeup of judges, that's what it would take to change things. >> or even amendment -- an amendment like the proposed ted cruz amendment, which would leave the decision to the states. that would also be a big improvement over the status quo. >> or even amendment -- an amendment like the proposed ted cruz amendment, which would leave the decision to the states. that would also be a big improvement over the status quo. >> again, it's a long process getting constitutional amendment passed so it's a longer term strategy. >> back there. way at the back. >> i'm peggy with faith and action. when the decision came down, our phones were flooded with pastors in a panic. can you kind of really state exactly what happens with pastors? they use the term, they're going to have to be forced to marry things as couples or where are they with this with their licenses to marriage through the church or whether you're a pastor that works for nonprofit and you perform marriages? >> i think the -- can i answer that? i think the first amendment quite clearlyforces someone to marry a couple he or she doesn't want to marry. so, i've never really viewed that as a substantial risk. i think the other risk we talked about earlier are serious risks but i think that is probably not a serious risk. >> i'm a student at georgetown university. i'm wondering if you guys can speak to this pattern that we've seen with the courts redefining terms. is there a way we can stop this from happening in the future in another argument? good luck. i think the way we can do that is get judges who have a strong commitment to be faithful to the constitution of the laws. we notice it in a case like this one, wow, this is a term they totally redefined. this is not a unique case because it's a common problem within the law that either someone will say, this is the standard i'm applying. i'm applying, for example, rational basis. then they basically define -- define it and use it in a different way than it's been defined in every court case previously. so, this is really a fundamental problem of judicial philosophy and judicial integrity that we need to address. we saw it again, the discussion of -- most important thing we can do for a lot of issues in our culture that because this decision took place in the courts rather than in the public sphere, it's the kind of thing we got a give and take at the compromise, we have to protect religious freedom. it is still subject to interpretation by the same judges who are engaging in some of these questionable interpretive linguistic practices. so, i think we need to -- we can never underestimate the importance of judges. >> final question? >> ron cruz. there's already been a call for one activist for all chaplains who hold a traditional view of marriage to resign their commission because they're no longer able to support the constitution as defined by this supreme court but that would apply only to chaplains but to all military officers who would hold a traditional view. is that a concern? that military officers should resign from the military if they hold a view of natural marriage? >> on one level the constitution doesn't actually say that. if the constitution actually said that all four dissenters would have to promptly resign. they've taken the same oath. i think that's not something -- i hope we don't see a massive exodus of our military leaders. >> it's to the constitution not the supreme court's interpretation of it. >> and that should be the final word. thank you very much, panelists. this concludes our program. please join us for lunch in the hall afterwards. thank you hall afterwards. thank you [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2015] captioning performed by the national captioning institute, which is responsible for its caption contents and accuracy. visit ncicap.org 4 >> like many of us first families take vacation time. and like presidents and first ladies a good read can be the perfect companion for your summer journey. what better book than one which appearsen inside the personal life of every american first lady. inspiring stories of fascinating women who survived the scrutiny of the white house. a great summer time read.

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