in the way that was the least bit convincing so we decided that we had just better put a freeze on this and for the year and then have them come back if they want to come back but with a commission the commission in between, with a much better case and one which is also not just has the foundation but which also has the proportionality to it. the air force reductions were totally out of proportion between the guard and reserve forces as compared to the active

duty forces. unlike the other, unlike the army, unlike the navy and marines where there were proportionate reductions, where they have guard and reserve forces. that was not the case in the air force. it was way out of proportion and that was kind of something which alerted everybody. i don't believe that and look at staff to see if i'm wrong, that we made the kind of legislative decisions relative to the two units that you made reference to. >> if i may just add, never as underestimate the influence of the national guard. >> tell us why you did what you did with regard to the tank with the other crested funding that the army did not want? >> the feeling was that it came out of the subcommittee that the money should be spent to actually produce something which

has a use rather than to close down a line and then reopen that line a year or two later. it just is a matter of trying to figure out what is the most useful way to spend that money, close the line and not have a product or have a product. even though the army does not seek more of those tanks, they could perhaps be used for military sales or other purposes. >> senator? >> in the back. >> you mentioned you are an going to keep funding the air national guard. where did that money come from? >> there is no one particular source for any of these changes. we made about 150 changes in the president's budget request roughly, and so there is no way to say any particular increase came from any particular decrease. you would have to look at all of the increases in all of the decreases and say altogether they are balanced that there was not a motion that said we are going to take money from one

place and put it into another place. >> there are a lot of decreases to stay in the budget but if you look at the chart which will be in there rather than to try to identify them. i wouldn't want to characterize major but there were a lot of decreases. >> what was the total amount of money that was changed over the other? >> i have a number of changes which is about 150 as i remember but i don't have the actual dollar amount. [inaudible] >> senator on pakistan again and interview today president zardari defended the jailing of the doctor. they are still demanding an apology for the strike that killed 24 pakistanis last november. they say that those strikes are counterproductive. what is your reaction to that and how badly. >> issa a part of the interview and it was a very articulate young man. i was impressed by what he had to say.

i don't see the connection between an airstrike that was an accident that killed 24 pakistanis. about that. there are some aspects of the whole operation that we don't know all the details, but to somehow allege that under any country's law, this doctor violated any law is of course just beyond ludicrous. it's outrageous. so for him to, if indeed the two are connected than that in itself is wrong. why convict an innocent man in response to your dissatisfaction if you didn't get an apology from the united states of america. what's that all about? this is a human being. this is a human being that happen by accident to go to this house and discover that osama bin laden lived there so now we are going to sentence him to 33 years in prison because the

united states of america didn't apologize for an entirely separate incident? i am sorry, that is not the kind of logic that makes any sense or is any kind of decency. >> i would like to see all of the factors behind this airstrike. i don't know enough to reach a final conclusion. the united states regrets the needless lending or death of anyone and we have made that very clear, so i hope that we can complete the investigation and then the president and the secretary of state will make that decision weather and apologies in order. in the meantime that is not an excuse to sentence somebody to 33 years in prison.

>> are there any further restrictions on the japanese money for the buildup and qualm? any changes on the tangible progress and on the construction, is there any military construction money beyond the guam national guard or any new -- infrastructure? >> i think we continued the provision relative to limiting additional construction and till we get those reports, and there was a military construction projects on qualm. i think it was the one that you just identified that were looking for help. [inaudible] >> wondering if this might have negative implications on the buildup?

>> may i just point out to you that according to the law, we had a study made. the pentagon now admits that they made a terrible mistake of waiting three months before they had a contract. we expect that assessment sometime next month and then i think we would be able to make the appropriate decisions associated not only with what the administration's is but what the dependent -- dependent assessments as. >> if history is a guide for bipartisanship on this bill today, you haven't been able to get the bill off of the floor? it just seems to be bogged down. >> we never miss. >> you never miss at all? >> no. >> you are there amendments behind it? >> we have still been able to manage those amendments under the consent of the united states congress. >> we have her question with senator reid and we are on the list and it is a long list so it

may not happen in june but the fact that we are in the list assuming we can get this done today into will be on that list and if we don't get it done in june i'm optimistic we will get it done in july. >> senator levin and i work in a close bipartisan manner. sometimes our discussions are very -- >> you haven't haven't seen evidence of that here. [inaudible] >> he can you talk about the kind of language you have on the program? >> we have a strong restriction on cost overruns on the carrier and we have several other restrictions and modifications to the funding which we hope will at least bring some of these under control. >> there is a number of specific systems and i would rather not from memory tried to give them

to you, worby have identified and put in requirements for reports on cost. >> i think this is the second movement on the hill today. is there something going on to start moving legislation? >> we have talked with senator leahy and senator lindsey graham who is also a member of our insurance committee as he knowingly will be working closely with them. >> is there other legislation coming up? >> would like to have administered should weigh in on this, where there is a general sense of frustration on this issue and we would like to work with the frustration. >> what i would say is the fact that there are so many places on the hill that are reacting this way shows not coordination and which frankly it did have more

coordination but it shows there is a common outrage, a common response in just about every place you can look. that is what this shows. by the wave someone asked me about the amendment relative to the department of defense paying for abortions in the case of rape or, which was the hyde amendment. we have now authorized that payment in the case of rape and so we are now caught up in the department of defense to the hyde amendment. >> there is language in here asking for an assessment, is their language on that? >> no. [laughter] >> coming up tonight on c-span2, a senate hearing on efforts to help homeowners refinance their mortgages. then, two panels from this years year's national religious freedom conference examining the health and human services health care mandate.

the senate banking committee heard testimony thursday on legislation that would expand the number of homeowners who could refinance and take advantage of record low interest rates. the bill cosponsored by senators barbara boxer of california and bob menendez of new jersey would apply to those who are current on their payments and whose loans are backed by fannie mae and freddie mac. this is just over an hour. [inaudible conversations] >> i call this hearing to order. i would like to tank to our witnesses for joining us here

today. recently, the committee has explored a variety of ideas to expand mortgage financing opportunities. we are here today to discuss one of those proposals for responsible homeowner might re-financing act introduced by senators menendez and boxer. the bill seeks to address failures to refinance debt continue to exist in the harp program run by fannie mae and freddie mac. while fhfa need some changes to the harp program last year at the urging of members of congress and the administration, i continue to hear from constituents in the housing industry that more could be done to encourage competition in the refinancing market and give homeowners additional assistance as they navigate current market

conditions. the housing market continues to struggle with home values that are far below the level seen a few years ago. despite the dramatic decrease in home values since 2006, many homeowners are upholding their commitment to pay these loans back. however, as we have found in previous hearings, these responsible homeowners are at a disadvantage when it comes to refinancing their loans at today's record low interest rates. they often have limited options when shopping for the lowest interest rate because they can only refinance with their current service are. the gse's have not applied harp's and if it's in a

consistent manner which creates unnecessary complications for lenders and homeowners. loan level pricing adjustments increase the cost of homeowners seeking to refinance even though the gse's already hold the credit risk associated with the original mortgage. our witnesses today bring a wide breadth of knowledge considering mortgages to the housing market and the economy as a whole. i look forward to hearing your thoughts on how the responsible homeowner financing act will provide homeowners more options for refinancing and encourage competition among -- to stabilize our hosting -- housing market. improving the housing market is the first track before -- and i

would ask my republican colleagues to work with me to move this important legislation without and with that i will turn to senator shelby. >> thank you mr. chairman. welcome. today's hearing is focused on legislation that would expand the federal housing finance administrations home affordable refinance program. the program commonly referred to as harp is designed to enable the refinancing of mortgages for underwater borrowers with gse loads. while this is an important area i believe to explore, you should only be one aspect of a broader debate. a fragile housing market faces numerous challenges. the uncertainty created by the nearly four-year conservatorship of fannie mae and freddie mac is just one such challenge. the resulting lack of clarity in

the secondary market is a major impediment i believe to private capital returning to our housing finance. without that capital, think it will be difficult to have a sustainable recovery in our housing market. the statutes and rules created by dodd-frank are also proving problematic. the potential consequences of rules pertaining to qualified mortgages or q. m. and qualified residential mortgages or q. r. m. have drawn concerns from industry participants and consumer groups alike. fha has also been woefully neglected. four years fha has severely misjudged the risk to which the taxpayer has been exposed, making a taxpayer bailout a real possibility. despite these past mistakes we can take steps to help the market move forward if we

honestly assess our current situation. i think today's hearing is a first good step mr. chairman in that direction. thank you. >> thank you senator shelby. are there any other members who wish to make a brief opening statement? thank you all. why want to remind my colleagues at the record will be open for the next seven days for opening statements and any other materials you would like to submit. now i would like to briefly introduce our witnesses. mr. bill emerson is the ceo of quicken loans incorporated a mortgage lender based out of detroit, michigan. mr. christopher papangianas is the managing director at e21, nonprofit organization focused on economic research and public policies. mr. moe veissi is the 2012

president of the national association of realtors and lastly, dr. mark zandi is the chief economist at -- analytics. mr. emerson, please commence. >> chairman johnson, ranking member shelby and members of the senate committee on banking, housing and urban affairs thank you very tatian to testify at today's hearings for this very important issue senate bill 3085 responsible homeowner refinancing at the 2012. my name is bill emerson on the ceo of quicken loans. we are a 26-year-old originator based in detroit. we the largest on line lender in the nation's fourth-largest retail lender. j.d. power and associates is ranked quicken loans highest in customer satisfaction in the united states for 2010 and 2011. i testimony will address some issues with harp to point out. harp to point it will help more homeowners and we applaud the administration the fhfa and the

gses the mortgage industry to working together to improve the hard part of. however harped 2.0 is not designed to help enough underwater homeowners. while harp 2.0 not help enough homeowners? there are two answers. the differences in repurchase wrist for new iterators and the lack of capacity and larger servers or. the wrist borne by yergin is under harp 2.0 are different because the guidelines that the richer they must follow her different. this same service or is not required to verify or document debt-to-income ratios, borrowers income or the borrowers assets. the same serves only to verify the borrower has a reliable source of income. originator on the other hand must calculate a debt-to-income ratio and document and verify income and assets. this is one of the significant increased risk exposures coming from the newer jenae. both services are required to

represent the warrant to the gses they are originating in underwriting loans according to gse guidelines. the iffy return is found to be in violation, the originators required to repurchase the long. the gses regularly required repurchases based on flaws however minor and the origination and underwriting process. sometimes it's flaws are extraordinary difficult to prevent. for example borrow her takes out of credit card or auto loan when data wednesday before the loan closes and originators are required to repurchase loans even though they acted diligently. because the newer chairs have more stringent underwriting requirements than the same servicers and therefore more warranted wrist there is a higher likelihood they will have to repurchase more loans and incur significantly higher losses. according to come accordingly prudent originators stay clear of most harp 2.0 loans but for the most part harp 2.0 loans originated by the same services to bear much less repurchase wrist. the reluctance of new originators to fully participate in harp 2.0, roughly 70% of gse

mortgages are being serviced by the largest servicing firms. because of these services can originate harp 2.0 would greatly reduces the services are carrying the load of trying to administer the harp 2.0 program. daoist any good intentions of the large servicers they will simply not be able to help enough heart harp 2.0 eligible borrowers given all the other duties the servicers must perform aside from originating loans. they simply can't wrap up their platforms and hired and trained people fast enough to help homeowners. some of the servicers are greatly reduce or eliminate their origination platforms thereby significantly reducing access to credit for the harp 2.0 far worse service by large firms. is the capacity to mention early and the limiting of opportunities for the consumer to take advantage of lower rates. pick a month is from the motor city so let me illustrate my point. is one of the automakers needed to do a recall and all of their vehicles it would require the owners to return their car to the factory to have a vehicle

fix. said they would quickly and efficiently use their nationwide network to resolve the problem. parp 2.0 has constructed such that it will render the origination network large the ineffective and instead rely on handful of larger services to carry the load. to gse bears the risk on these loans regardless of where did was originate. there's no reason to create artificial barriers that block new originators from using harp 2.0 to assist homeowners and helped gses wrist position. because it's being utilized by small member firms the demand for harp 2.0 origination just dramatically exceeding -- the imbalance of this age old law of supply and demand results in higher prices for the new harp 2.0 mortgage that normally would have competition existed. responsible refinancing out of 2000 focus long way toward addressing many of the underlying problems but the responsible homeowner refinancing out of 2000 focus and remain exclusively focused on improving harp 2.0 and avoid

complicated detours into other subject matters the new version of harp 2.0 can help millions of underwater borrowers. therefore we support the act has proposed and i thank you for allowing me to testify on this very important topic. >> thank you. >> chairman johnson or, it rained or civic may thank you for the opportunity to testify this legislative hearing on the responsible homeowner refund at the 2012. unimagined wreck of a nonprofit think-tank e21 economic policies for the 21st century. we aim to advance free enterprise fiscal discipline economic growth and the rule of law. wewe are focused on developing public policy research that advances market performance and implementing rules to prevent market malfunction. i would like to say i continue to see a great deal of stress across demand and supply dimensions of the housing market. is demonstrated by the thousands of bar were still struggling to make their payments and stay in their homes. however it's also important to

acknowledge that many of the major negative trends that dominated the headlines since the crisis are now well off their post-crisis peak. for example the current level of housing for sale suggest that the market is close to equilibrium. in many ways it the weak demand for single-family homes appears to have eclipsed the challenge. another important market development to acknowledge is that lenders are capacity constraint today. is a detail in my written testimony i believe the lenders and servicers are hesitating to make the necessary structure and -- infrastructure investments because they just don't have the good sense of how profitable the housing demand and servicing business will be over the medium to long-term. the implication is that there are a lot of policy and regulatory uncertainties that are holding back the broader housing recovery. i group them into three buckets, servicing underwriting and she is the reform. i believe this backup is crucial to understanding the challenges in the housing market. resolving this uncertainty also holds the greatest potential on

a comparative basis for positively and responsibly impacting the housing market. on the bill before this committee today which would further expand our -- harp 2.0 to say 3.0 my summary conclude in his wallet think the intentions behind many of the provisions are admirable there are potential unintended consequences that this committee should consider. for example changing the eligibility date from june 2009 to june 2010 and/or aloud wing for harp loves to be re-harp with the controversial. some additional borrowers might be helped by this change but the prices paid by the hour was for hard -- harp refinancing would go up. when refinancing programs are continually expanded, investors may be forced to adjust their expectations about future prepayments, effectively assuming that future mortgages will have policy risk functions that could give our worst easier access to a lower rate mortgage.

while that may sound like a good policy objective in the long run, the net effect could be the market participants simply demand higher yields and mortgage back securities. it's also worth noting or highlighting that harp 2.0 has only been up and running since march and it's not clear how many additional borrowers could or would be held under harp 3.0. it's important to recognize a new implementation process may actually delay the harp 2.0 wound that appears to be underway. thank you again for the opportunity to testify today and i look forward to answering your questions. >> thank you. mr. veissi, please. >> members of the committee, thank you for the opportunity to testify on the solutions that will provide relief to homeowners who continue to be current on mortgage applications during this prolonged economic recovery. by name is moe veissi and i'm the 2012 president of the

national association of realtors with about 1 million members. i'm a practicing realtor myself in miami florida and markets have experienced pretty severe downturns during the period of time discussed. the responsible homeowner refinancing act allows current borrowers and i would like to underline that, current artwork, whose loans are held by gses, to take advantage of record low interest rates. when i say current and mean that these folks are continuing to make the commitment and obligations in the manner that they promised to do when they took the low now. we calculate that it will save our worst somewhere between 4.5 and close to $5 billion a year after tax considerations and more than about 45 to $48 billion over a 10 year period of time in 2012. that is a significant impact on local markets, not just simply because those folks may invest a

fortune into savings but because those local markets is the american fabric of homeownership together across this country. we think it will reduce the family's families average annual obligation roughly by about $2800. there are two examples that i wanted to bring forward. one about four months ago when i was traveling to d.c.. i sat down in my seat on the plane and the young lady sat next to me. she started to recount that one she is an interior designer and to cup her husband is a golf pro. they live in southern california in the desert. they bought a house in 2007 and are severely underwater. issa, what he doing about it? she said we are continuing to make the payments and we really don't have any other opportunity to get out from under it. a person like that is exactly the person we are talking about. making sure that their obligations are met, knowing

that they are on point and still underwater. the second example is a little more poignant. i got a referral from a college professor in chicago illinois who had locked 80 condo in miami beach and another home which he and his wife anticipated retiring to. the condo he thought would be an income producer for him and his retirement and the home was a retirement home. he paid 450 for the home and upwards of 650 for the condo hotel and both of those investments turned south. he used that the balance of his retirement income and savings across the board to carry those two investments until he could no longer. he declared bankruptcy. that is the kind of person that we need to catch before he gets into those kinds of severe

circumstances. i guarantee that he paid as efficiently as they could for that period of time. we think that kind of legislation will benefit about 3 million folks who are in trouble today. it eliminates us -- unnecessary consumer feeds and allows the financing market to address those opportunities that exist and the legislation establishes penalties for services on second liens and mortgage for the refinance process that exist today and the nation's housing sector in a precarious state, as chairman johnson indicated. there is no question that this is a fledgling recovering housing market and the last date recessionary periods have come out of a recession because of a strong real estate market, mostly housing and peripheral industries. any steps to create a better

housing market is something we can continually support. any fees that access should not be used for the purpose related to housing such as paying for payroll taxes and i applaud dave menendez and boxer administration for not utilizing the gte. homeownership is inextricably linked to a healthy community and a healthy american economy. this is why the national association of realtors support any and all efforts to support the ownership and investment in real estate. >> thank you. dr. zandi please began. >> thank you chairman johnson, senators shelby and corker, it is good to be here. i'm the chief economist at moody's analytics and these are my views and not that of the corporation they should also know that i'm on the board of directors of mgic the largest

insurer in the country. i'll make four points in my remarks. first, policies said to facilitate more refinancing i think are among the most straightforward ways to help the housing market and the economy. both the economy and the housing markets are making progress. we are moving in the right direction but clearly conditions are still very weak and the risks are significant. the threat from europe, lots of different threats due to this fragile recovery so i think it is important that policymakers continue to think about ways to support the housing market to look at our economy more broadly. the second is that the key policy effort to facilitate more mortgage refinancing, harp, has at this point been a disappointment. if you look at the numbers according to fhfa there have been 1.2 million harp refinancing since the inception

of the program back in '09. a little over 100,000 for homeowners that are negative equity positions. expectations were for something much more significant than that so i think it is fair to say you have to look at expectations. the changes that were proposed late last year and are now being implemented appear to be quite good. they seem to be working well. if you look at some of the data coming from the mortgage bankers association on refi applications they have picked up quite a bit. part of that is related to the low mortgage rates and we are now at record lows of 4%. i think what harp is done, the harp changes have been very good and very therapeutic. my expectation for the harp 2.0 program, it policies makers do nothing going forward we will get roughly 2.5 to 3 billion refinancing through harp at the end of the day. the third , given how wealthy

harp changes seem to be going i think it makes logical sense to extend those guidelines and rules to all fannie and freddie loans. i don't really see any good reason not to do that and i think we should do it quickly because mortgage rates are very low and this is such a very good time to refinance. this is clearly a significant benefit to borrowers. i agree with all the arithmetic that the realtors put forward that could save the average homeowner somewhere between $2,503,000 he. for the economy as a whole, it saves $67 billion. it is small in the grand scheme of things but it's very helpful and i should point out is going to be very very helpful for those markets that are under a lot of stress. florida, atlanta, arizona, nevada, california and new jersey, these are really

hard-pressed areas and these are areas where the refinancing money could be quite helpful. and this comes at no cost to taxpayers. the way it is designed at the end of the day it will not cost the gses anything and cost the taxpayer anything. from a homeowner perspective and a broader economic perspective and a taxpayer perspective it seems to make a lot of sense to me. the fourth there is a loser in this and that is the investor, the mortgage security investor so very simply if homeowners are paying less in interest, then the other side of that is the investor is collecting less interest and so they do lose. first the federal reserve is now the largest mortgage security investor so because of q. e. they now have $1.25 trillion in securities on their balance sheets. the second thing i would say is, the qe action with the windfall to those investor so mortgage

securities investors have been tremendous beneficiaries of government policy. one might argue there is no bigger beneficiary from government policy than mortgage security investors. and then finally i would say, in most cases have been paid out already. if the market was well-functioning, than all the models would say and all the investors have these models that they would have arctic out and paid out of these mortgages are long time ago so in essence they are benefiting from the failure of the marketplace and this legislation the menendez boxer legislation addresses that market failure in a reasonable way and i think this legislation is good legislation and should be past. thank you. >> thank you all for your testimony. as we begin questions i will ask the clerk to put five minutes on the clock for each member. mr. emerson, your testimony describes the problem you face when working with homeowners

seeking to refinance their mortgage. fhfa continues to deny that their art different requirements for new businesses compared to be financing customers under harp. so that we are clear about how the program works in practice, would you describe the differences again? also the great terriers that prevent you from competing with loan originators that also service the loans they are refinancing? how would the menendez-boxer bill remove those barriers? >> appreciate the question. i cannot speak to what the fhfa denies or does not deny but from a practicality perspective we have conversations with the gses on a regular basis and we

looked at the guidelines. we understand how they operate so today i have to do a full underwrite on that transaction. i do fully underwrite an common assets and everything associated with it as they would with a normal loan. the same service or does not do that. there's no verification of income or verification of assets and it's a very streamlined process. there is also less risk because at the end of the day, if we originate loan and document incoming assets and for some reason there is a mistake in the origination process the gses will put that loan back to us. when you take a look at the ltp, when you start looking at at increasing loan-to-value above 125%, you will see that those loans, something goes bump in the night for somebody was underwater they will have a higher propensity to default them and that happens the person and has more at risk such as the originator originated as today will buy more loans that been the same service are well and there's no way to quantify that

dollar amount and that risk. so by getting rid of that, that piece of it, you reduce risk and you bring originators now into the mix who have the capacity to help homeowners and that is what they do full-time for a living. a lot of them have multiple things that they serve in a lot of the originators, that is what they focus on, is just a homeowner and helping that homeowner out so by limiting that here's your you open up a much larger landscape. he bring in competition. it allows pricing levels to be competitive and at the end of the day i believe it facilitates the opportunity to help more homeowners than will be helped if we do nothing if we leave harp 2.0 the way that it is today. i'm not sure that clearly answers your question. >> as a realtor in florida you see first-hand the homeowners and the housing market are trying to overcome.

in your opinion how wealthy responsible homeowner act, homeowners ultimately to the housing market? >> i want to restate it so i'm sure i understand the question. how would it affect the existing housing market? >> how will the responsible act, homeowners ultimately the housing market? >> i think it will offer opportunities to those people who have assumed their obligations like the ones that i made as an example to you and they think there will be a lot of folks across the country that would take advantage of this, especially today. the opportunity to get into a mortgage at rates of 3.875 to 4.5% versus five or 6% that they might be paying ultimately. i think there are two opportunities that exist when

somebody does that. we have indicated that there is an opportunity to save about on average, 2800 bucks a year. i will bet you a dollar to a doughnut that most of those people will take the majority of that and begin to save because we have seen over period of time that people are becoming more savers than before. but i will bet you also that there will be an excess of some of that will go back into the marketplace to stimulate the economy in those communities that are most hard hit like miami, like las vegas, like southern california and like even scottsdale. >> doctors and he would you describe for the committee how -- are affected when a mortgages refinanced and what the menendez-boxer legislation to start the market reaction to the historically low interest

rates? >> well, investors would lose the interest income that they would collect if the homeowner was paying the higher interest rate, so if we refinance the homeowner down to a lower inch straight and that lower interest income means less to the investor. some investors get their money back in a lower rate environment and they can invest it at the same return. so this is a problem that mortgage investors have been dealing with them from the beginning of time, the prepayment risk. they understand it very well. they have models that they use to determine what the prepayment risk is in investing in the securities and the price accordingly. this surprise to many investors in this recent environment is that a lot of these mortgages have not prepaid as fast as they thought they would because house prices are down, because people are in negative equity decisions

and all the profits in prophets and the housing and mortgage, normally get repaid at an incredibly low rates just hasn't happened so they have actually enjoyed more inches in just income over a longer period of time than they would have expected. but nonetheless, you know, they are enjoying this higher income and this spill, if it facilitates more refinancing activity, it means less interesting comes to investors and they would suffer as a result. my own view is as i expected my oral testimony is that i think they have already consider this. i don't think this is going to have any impact material impact on market pricing going forward. i think it is already embedded a market pricing. >> senator sheldon. >> thank you. i hope i am pronouncing it right is it papangianas? >> that is correct. >> thank you. mr. papangianas in some regions

of the country a major problem facing the housing market is the number of underwater borrowers. according to data from fhfa, the vast majority of far worse who would be eligible for refinancing and they're the menendez-boxer bill would not only be above water, but have at least 20% equity in their home. if that is true, this is coming from fhfa. is this bill likely to materially reduce the number of underwater borrowers? >> that is an excellent question. i think a couple points are worth keeping in mind here. generally speaking, the number that people throw out that there are 10 to 11 million people that are underwater. the gses are responsible for somewhere between three and 4 million of those mortgages. when you think about harp, and this came up in another panel

statement, harp really has helped people refinance that had lte's between 80 and 105. since 2009, april 2009 with harp was established the gses have refinanced more than 9 million mortgages for those borrowers that have ltv below 80. so i think your question is spot on. there are already refinancing solutions for borrowers that have equity in their homes. >> with most of the participants likely to be refinancing today's market with low interest rates if their properties are above water in their making their payments and so forth? >> if the borrowers current it has equity in their home, there are refinancing programs that the gses have have they been very robust. there is a pricing differential but again those borrowers have

equity and what we are talking about here with regards to moving potentially to a harp 3.0 program is to lower the cost, but really i think it is wise for the committee to think about whether we are really reaching truly underwater borrowers as opposed to borrowers effectively. >> doctors stand in your testimony among other things, you state that the menendez-boxer bill should we amended to remove her visions that would impose monetary penalties on second lien holders and mortgage insurance companies that do not permit financing. why do you think that is necessary? >> a good question. my sense is that the second lien mmi are not a problem with respect to harp refinancing. the largest -- largest mortgage servicer agreed that if there is a second lien they will be supported and i haven't heard anything to suggest that they

are not doing that. >> what do you mean by this? is a say you have a first mortgage and you got a second mortgage. ordinarily if you refinance the paydown or whatever the first mortgage gleaned is that makes the first mortgage work more. >> it does so when you re-subordinate, explain what you need. >> the second lien has to agree to the refinancing on the first so that means, i agree, go ahead. you would think they have some economic reason for doing it. as you say you are lowering the monthly payment on the person it's more likely they would pay on the second and they they're thinking this for various reasons. the market servicers that are participating have agreed under harp 2.0 rules that they will not do that. most second lanes are on their balance sheet. they are going to re-subordinate. >> if you had a $100,000.1 lien

on a nice home and you had a $100,000.2 lien and you refinance and pay down, somebody takes a haircut or they pay it down, you pay down the first mortgage and then the second mortgage obviously goes up in value, does it not? >> all things being equal yes because the probability of default declines. >> mr. papangianas what do you think about heavy consumption? >> i agree. i think subordination of the second lanes, subordination of mortgage insurance, i believe that the problem has largely been addressed and they think it's through harp 2.0. i do think that fhfa did an ample job working with industry

to walk away that issue. there may be a few remaining miscellaneous holdouts in that area but i think largely the problem addressed itself. >> one last question about fha reform. the federal housing administration that we all know continues to face a severe shortfall, making it, a lot of us believe, likely that fha will eventually need a taxpayer bailout. we hope not but the end numbers indicate that. this is a problem that fha has been seeing coming for years but nothing has been done since we address that. considering the overall importance of having a stable housing market for our economic recovery, how critical is it that we reform fha and the sooner the better? >> i think it's very critical senator. if not for the a.g. settlement

and specifically the award that was directed to fha, fha would be insolvent this year and would require at the love. i defined a bailout as accepting a loan from treasury to continue its operation. i think loans that might not ever be paid back -- >> i see that there is a consensus in the market that fha does struggle to manage risk, and i think moving forward, greater attention should be placed on the need to ensure that taxpayers are protected and that they are appropriately pricing for the rest that they take on. >> mr. chairman if i could, have one quick last question. explained for the record quickly how the default rate on homeownership is much higher than the multifamily?

is it because people have put more money down on multifamily loans? mr. zandi? >> we have had testimony that the foreclosure rate with freddie mac and fannie mae on multifamily properties is very low. whereas on the foreclosure rate on single families it's pretty high. >> in the current environment that is very true. the market is being driven by very strong absorption because of the foreclosure price and because of the demographics but in a normalized market on average over time historically single-family mortgages have worked better than multifamily. >> senator menendez was on the

floor doing other business and because he has a leading role in the menendez bill, i will afford him an extra opportunity to begin an opening statement followed up by questions. >> mr. chairman thank you for your courtesy and to both of the members as well. i was on the floor for the new jersey reauthorization is where the medicine chest of the world so i appreciate your courtesy and i appreciate you and the ranking member holding this hearing specifically on the menendez-boxer legislation which i think is incredibly important. as i said many times we need to fix the housing market in order to get the broader economy moving again and create jobs and fixing the housing market has to involve multiple strategy to attack the problems at different angles into me refinancing should be one of those strategies. tiberi for borrowers who are making their payments but whose interest rates on their

mortgages are above today's interest rates at four or 5% and that is why senator boxer and i have used the responsible homeowner financing act of 2012. the bill is very simple. any homeowner with a fannie or freddie loan should he able to get a preapproved package in the mail from their lender, sign on the dotted line and be automatically put into a refinance loan that saves them hundreds of dollars a month. no more lending bureaucracy, no more red tape. it should be simple for any homeowner to do this. that is where bill is supported by the national association of realtors, the national association of homebuilders, many lenders by quicken loans, some mortgage investors like amherst securities and by small business groups. our bill will help the 17.5 million borrowers who have fannie mae and freddie mac loans but who are trapped paying interest rates above 5% because of barriers to that refinancing.

most estimates are that it is likely to help an additional 3 million borrowers to refinance although that depends on how many are worse take advantage of it. our bill will make it easier for homeowners to refinance and love for their mortgage payments which is both a popular and common sense way to help the housing market and by the way to help the economy as well. if i have a roof that has been making and all of -- now i have the wherewithal to fix it, i'm going to preserve my property, reserve the value and at the same time go ahead and hire someone to do that and actually has a ripple effect in our economy. allowing homeowners to refinance on the home that is 6% interest to a loan that is 4% interest with save them hundreds of dollars a month, putting more money in their pocket and reducing defaults and foreclosures. some come but not all the refinancing areas i have her discussion about what has happened in fhfa harp expansion called harp to, not all of the

barriers to refinancing were addressed. for example harp two removes -- removes -- -- maybe doesn't apply to borrowers under 80% loan-to-value ratio who theoretically should be able to refinance but in practice sometimes cannot. my office is heard from new jersey homeowners who are in exactly this situation. fhfa scaled-back wired -- as an obstacle to encourage refinance loans for same same servicer refinances and harp two but they did not scaled-back representations and warranties liability for cases where a different servicer was refinancing loan which is led to a lack of competition among lenders that has resulted in much higher interest rates for borrowers according to analysis from amherst securities and many others. it seems to me and something i know many of my colleagues

report, competition, we need to inject competition and market forces into this arcade where services have an unfair monopoly on refinancing certain borrowers who effectively have no choice but to use their original lender. another obstacle, and i have her description on this today is that second mortgage holders in one ensure united guaranty do not always allow their interests to be transferred to a new refinance loans, even though they are generally better off when the first mortgage refinance is to a lower payment because that makes the loan less like we to default in the homeowner more likely to be able to pay the second mortgage as well. so i compliment the other mortgage insurers for working with fhfa to streamline these right finances and transfer their interest automatically, but united guaranty is an aig subsidiary, a t.a.r.p. bailout recipients, that that is not

agree to do that, thereby hindering refinancing and costing homeowners and federal taxpayers money. it's pretty amazing to me. another obstacle are the appraisal cost of homeowners without savings cannot afford to keep them trapped in high-interest loans. yet another barrier is verification of income tax and other paperwork needed for new loans but not necessary for refinance loans with the borrower is already making payments on time. i was gratified to hear mr. chairman better subcommittee hearing that i chaired a few weeks ago on every witness representing all points of view, that they didn't think this paperwork was necessary for refinance loans. for these fannie and freddie loans taxpayers already own the risk. at these homeowners default regardless of whether we allow the homeowner to refinance or not so stopping homeowners from refinancing into lower-cost loans where they are less likely

to default, homeowners and taxpayers and is obviously in my mind terrible policy. fha fennie needs to change this now. it's urgent because we don't know how long low interest rates will remain and once interest rates rise it won't make any sense for homeowners to refinance. every day the fhfa and congress delays is another day that both taxpayers and homeowners are losing millions of dollars. finally, one of the best aspects of the boxer menendez responsible homeowner refinancing act is that according to preliminary cbo estimates, it will stop a lot and save taxpayers money because fewer homeowners will be -- when there glover -- mortgage payments are lower. mr. chairman i appreciate that opportunity and i have two questions. one is to mr. emerson. do you believe the current harp

two policies give an advantage to the borrowers existing lenders thereby reducing competition among lenders and increasing interest rates for borrowers? >> senator, believe that is the case simply from the fact that it is as you said more difficult and more risky for new originators to take on the more risk associated with the way loans are originates today and is result of that they are are steering away from doing a lot of the harp 2.0 loans at another point that is important is velocity. we don't know how long it will be before rates go up. we make it a 2.50 in dollar borrowers if we do nothing but how long is it going to take to get there? the sooner we can act and open up the origination capabilities in the entire country to help these homeowners the better opportunity we will have to help orphaned much or they get into low rates that exist today. >> it seems that only the fhfa are the only ones that think harp will limit competition let me ask mr. veissi and anyone who

wants to join and. another obstacle to refinancing is second mortgage holders as i said in mortgage insurers do not always allow their interest to be transferred to a new refinance loan even though they are better off then when the first mortgage refinance to a lower payment since that makes the loan less likely to default and the homeowner more likely to bail to pay the second mortgage. does it make sense to require automatic affordability to their refinance or? >> i'm sorry. what we hear senator crossed the border is a little bit different than the statistical evidence you get an idea with folks from california to new jersey and back down to florida across the country and we are hearing again and again that secondary financing in many cases holds up refinancing and in many cases

sales. i would have to think about the answer to that question and maybe confer with you, but that might be an interesting opportunity. >> mr. emerson what do you think? >> i think we are opening to look at how to make that process better from a subordination perspective. i think there a lot of secondly and holders that are subordinating but the problem in the process of because very cumbersome and it is -- there's a time delay in the information. many times but this harp program you are not utilizing an appraisal because there is no need to. but when the subordinate the second lien holder requires that appraisal so you now have to go out and charge additional money to get an appraisal when he don't need it for the first lien. while i do think a lot of people, a lot of lenders are subordinating the process itself needs to be dramatically improved and we hear that every day from homeowners.

i don't know if it's the right answer but we do need to figure out a way to streamline that. >> what i will take care of mostly wet we are concerned about the? >> based off of what i've read so far think it goes along with to getting there, yes. >> family mr. zandi i'm not sure if you saw the lender survey that came out recently that it indicates mortgage insurance and second means are in fact obstacles to harp refinancing and i would call your attention to it because i do believe this is one of our challenges in moving forward. that survey made it pretty clear that these are elements that are real challenge in terms of legislation. >> can i make one quick point? i think the legislation, the key points of the legislation are very good and if enacted quickly given the rate environment will have a significant impact. i think though, to try to

complicated in any way, unless it's absolutely clear that is going to make it that or is a mistake because it's going to slow things down and it's not going to get done and you will lose your window. so white they are on the part of being parsimonious here and getting what can be done done because we are really close to generating it. >> thank you. senator corker. >> thank you mr. chairman and you know while i have a bias and i began with a bias and i'm saying this to the senator from new jersey. we have had six programs trying to fix housing and i do think you know we have done a lot to try to bring things around. i'm open to looking at this and i have questions that i hope you will consider legitimate and trying to look to move this legislation through. i want to thanked the chairman for having this hearing.

i have to go to a markup and appropriations and i know he knows what those aren't i are and i hope we will have a markup on this bill. i think the senate hasn't been functioning properly because we have been air dropping things and and when we passed things out of committee in a bipartisan way they actually seem to happen. i hope we will have a markup on this bill. with those editorial comments i would ask my question really goes to mr. papangianas and dr. zandi. i thank you all for your testimony. one of the things i noticed in this bill, i guess you can continue to refinance and would it be fair to say that each homeowner could only use this program one time? would that be a legitimate parsimonious move to make? >> yeah, i think that would move this thing along. i think that would be the up or

breathing to do. one time, get it done. i agree with that. >> i don't know about the sponsor, i hope so. >> is there a way to do the streamlining in such a way that, and i really appreciate the desire to do that and i certainly appreciate the attempt by the senator from new jersey to solve this problem. is there a way to do it without initiating the gses ability to put these loans back? in other words, we are saving taxpayers a lot of money by putting loans back where originators did not follow appropriate guidelines and is there a way we can streamline this but not give up the right to put it back if things are done appropriately on the front and? ..

>> you may, and you just don't know. it becomes more evident issue. once you have that experience, and i don't think we need to do anything, we understand what the risks are and we can go forward. >> i agree with that. i think one other issue that has come up earlier on the panel, thinking with regards to new servers servicer refinancing versus same servicer financing, whether a new servicer

situation, income needs to be verified deaths that is one of the challenges that has been presented here before that committee. do you think it's important to keep in mind that from the gse's point of view, and this speaks to the warranty risk, it is really in everyone's interest to ensure that the borrower does have a job and does have income in the situation. it may be that is not the best option in bulk. and maybe that they need to go through hamp as opposed to heart. that is an interesting point. >> i just have a couple more questions. if we could be brief, the changing of things, one of the problems we are having right now is the private sector is on strike, and for good reason. i know all of us want to encourage them back in. there has been an unwritten rule that all loans made prior to

june of 2009 were fair game. anything after that, you know, they had a chance to refinance, and we would not settle things beyond june 2009. would it be appropriate to say that june of 2009 would be a good day? >> i think it is appropriate to stay. i think juno nine would be a good thing. you're not giving up very much. between june of 2010, i'm not sure what we're talking about. the rates are pretty low. i don't think you're going to give up a lot of the potential be best potential refinances. it again, i appreciate the streamlining of all this.

>> i know that the gse has asked not about underwriting, but so they can continue their processes. it would it be appropriate for them to continue to streamline the data, but they have the data available for future risk management opportunities? >> well, actually i would be surprised to say that they wouldn't do that. >> well, they are prevented from doing that he meant well, i'm not sure why that would be the case. >> i appreciate the input, and i hope the sponsors will consider some of the changes that have been proposed by these questions. i will close by saying the whole process to me has been incredible. we have given the mortgage services in this country such a home run when with all of these programs, and yet, typically, it gets extinguished when something

happens with a primary mortgage. i just hope that this bill addresses that. i know you all talk about changes to make this simpler. i do hope at some point this committee looks at this junior league process and realizes in many cases, these guys have received huge benefits. i would say, unnecessarily so. in many cases, there is a big conflict of interest between the servicers and the primary mortgage holders because they hold a second mortgage and they are basically benefiting themselves. i think you for your testimony, mr. chairman, for the hearing. >> thank you. >> thank you very much, mr. chair. i noticed in a lot of these hearings, we have a similar reflection of senators. i really appreciate my colleagues on both sides of the aisle continuing to wrestle with this issue of mortgages. certainly, the family home has been such a pathway to the middle class for families across

america. and through the whole subprime debacle of 2003 going forward, that was deeply damaged. i appreciate colleagues coming back time and time again to wrestle with how we restore homeownership is a pathway to wealth and equity and a piece of the american dream for the american family. a couple of quick questions, and i want to direct these two doctor mark zandi. in your testimony on page three, you note that the harp loans have been families under water, that is roughly 8%. you have this other 92% that benefit from the harp program that were underwater. the question keeps coming up, did harp need to exist for those families, and if so, what is the short answer of why? >> yes, because there are other criteria other than ltd.

it is other debts, and other factors, the credit score, many other borrowers because they were on the edge in terms of equity we're getting dinged and couldn't not get refinancing. i think it could help quite a bit. >> did you have any ability to analyze the statistics in terms of the families that could or could not get refinancing without harp? let me throw in antidote out here. when i went to refinance my house, the mortgage agent sent me a harp financing. i said why are you sending this to me, she said we are utilizing that to virtually every case. i thought that was very interesting. it suggested that perhaps there are some sizable numbers of folks, and by the way, i did not get a harp loan. >> was that recently? >> that was 2010. >> all right. >> yes. >> you said you are asking for

the counterfactual. i don't know the answers. >> second, in your spoken testimony can be referred to a that the bundlers have done pretty well. chris referred to those who are trapped in underwater mortgages. christopher mayer testified here. he said that excess mortgage payments have been made by those trapped in mortgage loans. i am assuming some part that folks trapped in underwater loans who have been defaulted, they have lost something there in terms of being able to get their full principal back. is there a sense of how these two factors have weighed against each other? the benefits of the higher interest, being trapped in

higher interest loans, versus the foreclosures in that sector? >> well, generally in the prepaid models that they use, they also account for default. that is just a form of prepaid. if you look at the models, they were all saying, you know, this should've been prepaid faster. even accounting for the defaults. i think they benefited net, quite significantly. that is the first order. a second order effects would be significant. all of the things that policymakers didn't support for the housing market, to stabilize the housing market, obviously went to the benefit of investors. because he would've had house prices fall to a much greater degree. there would've been many more foreclosures and much more of a mess. with watches and 10 losses much greater. i think it is pretty clear they benefited from government policy. >> thank you. that issue is brought up sometimes when the point is made that you guys had made. you also mentioned in your testimony, the rebuilding equity

act, which is a strategy i put forward to encourage folks who are refinancing, who have essentially the choice of whether they want to refinance to lower interest rates and benefit from lower payments, or is it valuable for them to benefit from lower interest, but make larger payments and have a shorter term, 15 or 20 years. when you look at the comparison of how quickly people get out from under water with the 15 or 20 year strategies, it is substantial. folks are 25% underwater are largely out from under water after five years under water for 15 or 20 years. it makes sense to help incentivizes option, doesn't it? >> yes, it's a great piece of legislation. it is a great correlating peace with senator menendez and his love that station. they can take a smaller monthly

payment and pay down principal more quickly and get out from under. i think it is a nice option. we are incentivizing them to save and build equity, which is in everyone's best interest. honestly, there is a cost involved. we're not talking about billions, but that has to be paid for. you can ask the homeowner to report in the form of a slightly higher interest rate. something simple like that, over time. you're taking the closing costs and you are expending them over longer periods of time. you are building equity, which is in everyone's best interest. >> thank you very much. >> thank you. >> i would like to thank all of our witnesses for being here with us today. senators menendez and senator boxer, they have proposed a bill to provide relief and assistance

responsible homeowners. i hope we can work together to move it forward. >> mr. chairman, before you close the hearing, i just want to, for the record, request a question. our legislation does not prevent data collection, it simply does not require it. there is a fundamental difference. i look forward to working with him and the members of the committee to get where we want to be. >> the meeting is adjourned. [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] >> friday on "washington journal."

see nbc's maria barter roma talks about the $2 million of losses at jpmorgan chase and lawsuits filed about the facebook ipo. later, the technology of self driven cars. joseph white of "the wall street journal" is our guest. after that, look at the demographic profile of the nation's veterans. listed shoe of the u.s. census bureau and meredith clay camp examine policies and programs available to help veterans and their families. "washington journal" is live every morning starting at 7:00 a.m. eastern on c-span. >> on friday, wisconsin's recall election. scott walker debates tom barrett. voters in that state will decide whether to recall the governor less than two years after he was first elected.

live coverage on friday night starting at 9:00 p.m. eastern on c-span. >> life is incredibly precious commander passes by far too quickly. during your time there, use all of your unique, god-given talents, to serve one another, as i will be the true measure by which your life will be judged. follow the golden rule. >> memorial day weekend, watch commencement speeches on c-span. politicians, white house officials and business leaders share their thoughts with the graduating class of 2012. saturday through tuesday at noon and 10:00 p.m. eastern. >> what i want people to get from the book is a better understanding of who who she was doing that for your period. there have been a lot of books written. most of them have been written by people who have talked to

friends of friends of friends, and they don't have the information themselves. i knew her. >> the late 1960s through 1964, clint hill served under jacqueline kennedy. >> there are many gossipers, but there is no salacious information there. it was what she liked to do, what she liked, how humorous she was and how intelligent she was. and also how she was rambunctious. she tried to put into the test many times. and i did my best to meet that test. >> more on c-span's "q&a" on sunday night. >> public policy experts gathered on thursday for the national religious freedom conference. the main topic of the first pack of the conference was the health

and human services birth control mandate. under it, health-insurance providers in certain religious affiliated organizations must offer contraceptive services to women. the conference is sponsored by the ethics and public policy center. this is three hours. >> welcome. our second panel is titled unprecedented threat to american religious freedom and rights of conscience. we have gone back and forth about whether there is a question mark there and we want to discuss that question. to moderate today's panel, we are fortunate to have professor gerard bradley, and i will briefly introduce professor bradley and trim the panel of it. professor bradley is professor of law at the university of notre dame where he directs the national law institute, and coedits the american journal of jurisprudence. an international forum for legal philosophy. he is a visiting scholar at of hubert university, and a senior

fellow in princeton new jersey. please welcome gerard bradley. [applause] [applause] >> i think it would introduction an opportunity to participate in this very important event. i wish to have my note of appreciation attitude that. to all of the organizers and people responsible for this event, as many of you realize, i'm sure you know from experience, it is difficult to be the person who immediately follows someone else to the podium who is really good. [laughter] that is my lot today. i should say have a standard clause in my speaking contract, which says i won't follow top shelf panelists. i have a standard thing where i don't follow pope benedict 16,

barbra streisand, or robbie george. [laughter] but i did wait up for this occasion, and i am already regretting it. as brian said, there is a topic which we proposed to discuss here for the next hour and 50 minutes or so. the key word is unprecedented. it is no secret. it is obvious, perhaps, that this conference arises from the confluence and convergence of feelings and senses come up more or less articulate, but one sentiment is something that is happening with religious freedom in a country that is new, but dramatically different, and it calls were concerned. callback unprecedented. perhaps, regarding liberty. the other senses that it is something that needs to be done, and it is not just a matter of

getting together to talk, but to talk about what is happening. what needs to be done. what could be done effectively. that is the brilliance of this whole project. it is not just another academic celebrity gathering. but rather, geared towards understanding the situation in america, and what can be done about it. we use the word unprecedented. it is not meant to be provocative. it could be false. i don't assume for a moment that everyone agrees that there is an unprecedented kind of liberty today, and i should say that unprecedented by itself is morally useful. literally, it means for the first time. for the first time that there is a first time for everything. doing something for the first time can be fine. it can get you onto david letterman's show, doing something for the first time can get you into the guinness book of world records. most recently, as far as i know, there is an australian

stuntwoman who got into the book because she managed to reach a speed of 40 miles per hour in a motorized toilet. [laughter] we mean unprecedented in something more than that. we mean new, different, and in some sense, from a moral value to prospective, threatening the contrition. something new is happening that is threatening religious liberty or not. as i say, unprecedented can be quite welcome. referring back to robert george, he was introduced as the father of jurisprudence at princeton. he is not the first holder of that distinguished chair.

two of his immediate predecessors were among the greatest constitutional academic lawyers in our history. walter harvey and edward koren. and he knew a man who went on to bigger things in the presidential chair. woodrow wilson. but robbie george is the first holder of the chair who also cut a bluegrass cd. here it is. it is signed by robbie, and i propose to auction it off in a silent auction. you can't imagine woodrow wilson doing this, right? [laughter] i do wish to turn to our panelists now. here is the basic plan. there are many of us come and i pledge to ruthlessly for our time limits, about 12 minutes or so, for each of the speakers. five minutes plus myself. a judge there is enough time remaining, what i want to allow for prepared remarks, i will

come back and say a few words myself. before we do the next thing on our agenda, the agenda for this panel, which is to invite comments among the panelists, the speakers, for about 15 minutes. then we will turn, hopefully with about 25 minutes or so left in our time slot for q&a from the audience. we do have a fair amount of time. there is a lot to do. there are many of us. we can get a lot done. i am the person to enforce the time limit. i rely on all of you until you if you don't already know, i was a prosecutor in manhattan for several years. it seems like another lie. and i was the time prosecutor in manhattan. [laughter] i'm not tough, but i know a lot of tough people. [laughter] the speakers will speak for about 12 minutes. from their seats, and i will briefly introduce each of them, before each one speaks. they are not going to speak in

the order in which they are raid, either from right to left or from left to right. we wish to turn now to our first speaker, who is hannah smith, on my far left. she is now chief counsel for the leading, most effective religious liberty law firm in the country. hannah is distinguished and has been an unprecedented way served to courtships on the supreme court under justice alito. she is a graduate of princeton and serve for two years as an lds missionary in europe. as i understand, the rules about living and working as an lds missionary, you are pretty much on task 24/7. one of the roses you don't watch tv. whether she is better or worse

work, she can say. she made up her that when she returned to active duty here in the united states. now she seems to be intent on appearing on as many television programs as humanly possible. among them are fox news, hannity, the o'reilly factor, and you can fill in the blank on the rest. hannah is one of the leading liberty lawyers come into the speakers. [applause] [applause] >> thank you. can you hear me? is this microphone on. okay. thank you very much for that generous introduction. it's great to be here today. my job on the panel this morning is to give you an overview of the threat to religious freedom in america today. i'm going to do this primarily through the lens of litigation. the becket fund for religious liberty is a nonprofit, nonpartisan litigation. and we defend religious freedom around the country. i'm going to talk about a few recent cases and ongoing cases

we are litigating to defend religious freedom in america today. i'm going to focus my remarks on three primary cases. those threats are the government mandate that forces religious institutions to issue contraception, second, the threat of religious organizations to choose leaders, and thirdly, threats to individual professionals. given the headlines as we come i thought it would start with the hhs mandate. that is the threat to religious mandate that require religious individuals and institutions to purchase drugs and services that are contrary to their religious doctrine. as professor marian grunden wrote in a wall street journal article this week, she said the main goal of the mandate is not as hhs claims to protect women's health. rather, it is a move to conscript religious organizations into a political

agenda. let's just make sure we're all on the same page about what this mandate is and how it was constructed and how it will play out. the hhs mandate requires all health plans, that is every employer that offers a group health plan, to provide contraception, and abortion inducing drugs, and sterilization to their employees, as well as counseling and education about all of those services as well. there is a religious employer exemption that is included in the regulation, and you have to satisfy all four prongs of that exemption. i'm sure many of you have heard that it is one of the narrowest exemptions to date in federal or state law. the four prongs of that exemption are as follows. first welcome you have to be a nonprofit entity, that is exempt not only from paying taxes, but also from firing a tax return. you also have to be an entity that implicates religious values as your primary profession. and you have to be an entity that primarily employees and serves people of your own fate.

many religious organizations are not going to meet this definition, and therefore are not going to be exempt from this regulation. now, i would remind all of us in the audience that exemptions are not new. they are a part of prevent lawmaking, explicitly religious exemptions are included in many lies untrimmed laws like title vii. our country has a history of attempting religious believers from actions that violate their conscience. some of those include exemptions for quakers that couldn't fight in the military, those who couldn't work on certain days of the week, those who couldn't pledge allegiance to the flag, corrections workers who could not be involved in capital punishment, and health care personnel who cannot be involved in abortions. so we have this long tradition and history of recognizing that religious conscience is something sacred, and we need to provide exemptions from the lot to protect it. we have for the administration justify the mandate and the very narrow exemption by saying it only does what most states in

our country already do. but i want to break that down and talk about why that is false. there are some states, about 28, that have passed contraceptive mandates. as compared to the state mandate, the federal mandate is unquestionably broader in scope and narrower in its exemption than all of those 28 states comparable laws. again, they are all here, the 19 states with an exemption, only three of them, and those are california, new york, and oregon come actually defined the exemption as merrily as the federal one here. even in those three states, with his very narrow exemption, there is the opportunity for religious organizations to opt out or self insuring or through not covering prescription drug benefits. even in the states where there are very narrow exceptions, like the federal one, there is an option for religious organizations to be able to opt out. even in states where there is a contraceptive mandate where there is no exemption, it is a

similar opportunity to opt out through insurance or not covering prescription drugs in the plan. the federal mandate permits none of these opt out options. that is why it is less protective of religious freedom than any other comparable state laws. again, the assertion that we heard repeatedly in the news that the federal mandate simply does what states already have done. it is simply false. what is the penalty for noncompliance? if a religious organization does not comply, they will be forced to stop providing health insurance come and they will be issued a penalty of roughly $2000 per employee per year. with the penalty increasing in subsequent years. these crippling fines are designed with a coercive intense. we have heard a lot about a compromise in the news recently, and much has been talked about this compromise. it wasn't really a compromise. let's talk about what happened in january at the very of this year. in january, there was an announcement made by the

department of health and human services that there would be no change at all to the exemption, but rather they would give religious organizations an additional year to comply with the mandate. this set off a firestorm of opposition that resulted in a february press conference with the president himself. the administration finalized a rule without change in the federal register. and they finalized the exemption without change in the federal register. it left intact all of the provisions and made no changes to the exemption at all. what was announced during the february press conference were two promises. the first was an enforcement of the mandate would be delayed by a year. presumably for the government, so they can promulgate could promulgate the next promise. the second promise was that in a rule yet to be developed, insurance companies, not religious organizations, would be forced to pay for it abortion inducing drugs, sterilization, and contraception, instead of the religious organizations.

the problem is many. first, anyone who understands economics knows that insurance companies will not offer this for free. religious employers will be paying for these services against their conscience through the cost spread through higher insurance premiums for their employees. some have argued that insurance companies would provide this because it helps the bottom line. if that's the case, why haven't they been doing it? at providing these drugs really reduce total cost of the government contends, that economic pressure would've already solved this problem. the second problem with the so-called promises and compromise is that hundreds, if not thousands of religious organizations have self-insured plans, and that means they are the insurance company and many of the religious organizations became self-insured to deal with the contraceptive mandate,

because under the state machine, you are self-insured -- if you are self-insured coming you are exempt from the contraceptive mandate. under the new proposal, nonexempt organizations, like for-profit or organizational organizations will have the religious their religious freedoms protected at all. we did see an advanced notice of the rulemaking to promulgate this so-called compromise insurance rules, and it lays out several ideas to fund the insurer's mandate. all of these proposals have been analyzed by people in the insurance industry and experts in the field and they have serious moral flaws. i might add that a major insurance committee has arctic called the proposed mandate unworkable and inadvisable. today we stand no closer to eight a remedy on religious freedom than we did before the february press conference was held. the compromise is a hollow

promise. we challenge this mandate last fall, up we have added 3 cents then. as early as this week, they're now a total of 23 lawsuits spread throughout 15 states, including the district of columbia that represent 55 companies. there are three non-catholic institutions. that is vitally important. this is not primarily a catholic issue. this is an issue that faces people of all kinds because of the issue of religious freedom. this notion that there is a religious war on women flies in the face of recent polling. if you look at a new york times poll that was conducted in march, which was during the real firestorm surrounding the hhs mandate. if you look at the statistics

for women during nepal, women actually sided with with the argument that there should be exemptions for employers that have conscientious objections to the mandate. the statistic was for any employer, whether religious or not, they should get an exemption 46% favored and 44% opposed. 63% favored an exemption, versus 38% were opposed. this idea that women are somehow opposed to exemption from this mandate, it is simply not in the polling numbers printed look at statistics for men and women combined, they are even more compelling. for any employer, whether religious or not, they should get an exemption and 51% of americans favored that, versus 40% opposed. for religiously affiliated employers, it was even higher. 57% favored and 36% opposed.

my last observation on the hhs mandate is that this notion that the government has considered all the interests involved and struck an appropriate balance, which we have heard them sing various documents, is difficult to believe. that is so because the secretary, under oath, before two different congressional hearings, has acknowledged, and admitted that she did not control the constitutional preference and she asked for no legal advice from the justice department while making her decision on the mandate. this is really shocking, for an admission like this. there was no legal memo prepared by the justice department about the constitutional implications of this mandate for religious freedom. this is next to the fact that there are thousands of comments about the legality of the mandate before was fine finalized. secretary panetta said i'm not a lawyer and i don't pretend to understand the balance. a former bush speechwriter who

now writes for the "washington post" said it best when he wrote in his article on tuesday, the only thing worse than indifference to religious liberty is casual, ignorant indifference to religious liberty. briefly, i will touch on that threat would be attacked to religious liberty of churches in choosing their own leaders. here, of course, i'm referring to a case which was decided in unanimous fashion earlier this year in january. i should mention that we, along with others, represented the lutheran church in this case. i think we have found is an unprecedented attack on the right of economy for churches to be able to choose their own leaders. notwithstanding the fact that for 40 years, the federal courts of appeal have recognized a

religious organizations to be free as they have set. for the first time in the tendency of the case, it was argued before the supreme court that there should be no exception at all. that is their first line of attack. this really was a head-on challenge against the very existence of religious autonomy and the hiring and firing of ministerial employees. it became clear that the majority of the rejected this extreme position. the second line of attack was more interesting. they said even if there is a exception, it should be limited to employees who perform exclusively religious functions. now, it was quite funny to those of us in the audience to hear the chief justice's response to that. his response was the best. he said that can't possibly be the test. the test is the head of state carrying out secular functions, right? he's not a minister? indeed, in the actual statement

that came out in january, the court rejected both of these extreme arguments, calling them extreme, remarkable and untenable. in the hell did it minister exception protects probably the churches . here come unfortunate from their many examples of this. i will just name a few. religious premises who are required by state law to provide abortion inducing drugs, they were fined by the state, religious nurses who were forced to exist in late-term abortions or risk losing their jobs, religious graduate students are expect content threatened with expulsion if they don't counsel homosexual clients, and religious government clerks who are forced of a job because they can't in good conscience sign

marriage certificates for homosexual couples. i would like to talk to you about a case that we prevailed in earlier this year at the washington state. many of you be familiar with us. we represented in that case, two women who were pharmacists and also a fourth-generation pharmacy that did not want to have to choose between their profession and their faith. in that case, the washington state pharmacy board project of the conscience of pharmacy workers, which permitted them to refer clients to other nearby pharmacies they were not able to dispense the drugs themselves. under pressure from the governor's estate, the board of pharmacy reversed the course. even though the board admitted that they found no evidence whatsoever that anyone in the state had ever been unable to find a drug that they needed because of the religious objection of any pharmacist,

notwithstanding that lack of evidence, they issued a regulation that required these pharmacists to stop dispensing medication, even if it violated their contents. it does, even though there were exemptions from this rule for other secular reasons. and other commercial reasons. they didn't want to dispense the drug because it had a short shelf life or for other reasons that were secular in nature. that was just fine. but if it was a religious reason, that was not acceptable. these two religious pharmacists sued to prevent having to choose between their jobs and their faith. one of the pharmacist had art he lost her job and the other one was threatened of losing her job as well. fortunately, the district court court judge in tacoma, washington, held that these regulations violated the first amendment. we continue to represent these pharmacists before the ninth circuit on appeals. and i just want to end by saying that there are many other threats out there to religious freedom. many are documented in the rising threats to american religious freedom document that

you have in your materials that were distributed today. some of them include restrictions on the use of private property by churches, synagogues and mosques. others include attempts to scrub out all represents references to religion in the public square. and the antidiscrimination laws that lack protections for religious freedom. i hope you can see from the list, threats are growing in number and intensity and severity. we are fighting many in the rule of law. we are confident that the rule of law will continue to stave off attacks to religious freedom. thank you very much. clap[applause] [applause] [applause] [applause] >> i think you very much, chennai, for the publication. our next speaker, donald landry is cheap at colombia university presbyterian hospital.

you can read more about john landry in the conference brochure. if you google him and have about a half hour, you can read the rest of his material. you will discover that he is amazingly and uniquely accomplished. there is a publication and research record that would be on the level of any accomplished scholar. not only in medicine, but in basic scientific research. i think that don come into this image or icon has done pioneering research in the biochemistry of cocaine addiction. at the same time, he has done that, he has ascended to the pinnacle of an icon. he is also the holder of 10 u.s.

patents. among his other accomplishments, if you will, his membership in one club, as i do raise an eyebrow or two about, he is part of the baltimore club. i don't know what that is. i was once a member of the stockton water club. don come if you take that up, among other things. [applause] [applause] [applause] [applause] >> submitted to the threats you are hearing about have a political aspect to them. that is why i am here. i would like to direct my comments to the practice of medicine and the freedom of religious prudence. if you think about medicine over the past few decades, we are witnessing the culmination of

the decades long process. it is a process. it has the effect to marginalize and suppress, if not substantially eliminate, those who do not subscribe the dominant liberal ideology, more specifically, those who do subscribe to traditional moral values. the result of this very substantial ideological purification, and it really is a bat. we hear about the ideology of the elite press or college professors. not just that a broad, theoretical interest, but the population has an interest at a practical level. if you think about your

position. unless you die in your sleep order get hit by a truck, you come up against the medical profession. you like the medical profession to have some grounding in moral values that resonate with viewers. we have a situation where well over 80% have shifted to one side of the debate. there are disciplines, surgery for one, in which traditional values may be even more highly expressed. it would certainly also be the case with an ob/gyn, they are almost entirely held to the extreme ideological left. in such a situation, a dissent is highly suppressed. one of the things i worked on was an alternative method for it generating embryonic stem cells. it was a method that scared

others. the presentation was given in neutral terms, and i presented it at medical schools and law schools. the interesting things that i presented at schools of medicine, department of medicine, is the whispered medical approval in the hallways afterward. it is not the kind of thing that can be expressed openly. there is an enormous suppression of anything that doesn't adhere to the extreme liberal orthodox. one imagines the ultimate expression of dissent, an assertion of a conscientious objection. this objection becomes progressively more difficult in such an environment. i am an advisor to residents in

ob/gyn who feel that they have suffered because they have asserted a conscientious objection forming some of the extremes and procedures that are now routine and required. i was on the president's council in bioethics. one of the presentations was testimony on the assertion by a governing body that medical practitioners actually do not have a right to conscientious objection. whenever that right goes up against the desired implication for anything. there is no limit. that absence of limits, no longer a limit based on conscience for a practitioner. this is in a position of radical

extremism. so many ascribed to the ideology of the template. when it comes to american religious freedom and conscience, absolutely. last, it is because it is something that has occurred in this mandate that we just heard about in such wonderful detail. because we are reaching a crescendo of a long process. a long, extreme, building process. those are my brief comments. thank you. [applause] [applause] [applause] [applause] >> thank you, don.

i noticed that he sidestepped the water club question. our next speaker is not a member of the salt and water club. richard land is and has been for about a quarter century, the president of the ethics and religious liberty committee of the southern baptist convention in the united states. in that capacity, over those 24 or 25 years, richard land has become a fixture of the public discussion or issues concerning religious liberty, even perhaps more generally, discussing the morally religious issues in america. he has become an almost public that's an important public resource. a highly influential spokesperson.

since 2001, he has been on the united states commission on international religious freedom. he embodies what this conference is about. richard land has done his share of participating in academic conferences such as this. he recently was serving as an interim pastor at the red bank baptist church in chattanooga, tennessee. now, this is a man who's not only accomplish, and as i say, a public resource, and a pastor, he is also a man that holds a ba from princeton, and a degree from oxford. i suspect we can use the word unprecedented about richard land in this respect. my guess is that nobody else besides richard land has degrees from princeton and oxford, but also as he does, a degree from the new orleans baptist theological seminary. richard. >> thank you.

this sunday will be my last sunday as the interim pastor at the red bank baptist church. we have a new pastor and they they're very excited about it. sometimes people ask me do you preach every sunday in addition to every thing else you do. and i say that is the last thing i would give up, is the thing i look forward to the most every week. it is the thing i find most compelling every week, preaching to the same people and being in touch with the local body of christ. that leaves me to say that i am neither a physician or a lawyer. i am a baptist minister, and an ethicist, and i do think that there are unprecedented threats to our religious freedom in this country today. twenty years ago, i was in debates with people in my own denomination and in american christianity in general. they were concerned about what they saw as threats to the establishment clause.

i said, you know, i am sorry. i don't see any significant threat to the establishment clause in my lifetime. but i do see rising threats to the free exercise clause from a growing secularism that is influencing the opinion making segments of our society, and it is increasingly intolerant of religious expression. i am reminded, as i look at the landscape of america, of that famous comment by peter berger, when he strolled was told there was a research -- the worldwide research done -- to discover the degree of religious belief or religious practice in societies around the world. when they finished all the data,

when they finished tabulating all the data, the most religious country with india, and the least religion untrimmed religious country with sweden. he said that the nation of america was run by the swedes. but it is still true to a significant degree. when we hear the word unprecedented, i can think of no other time in my time in the history of the united states, and the justice department of the united states, when they would go to the supreme court of the united states, and make an argument done, as they didn't taber case, but there are no particular and special protections for religion and the first amendment. and that churches and religiously affiliated organizations have no more protections under the first amendment than a country club.

john roberts, who is really developing quite a reputation for succinct remarks, i find the administrations position to be remarkable, considering that religion is mentioned twice in the first amendment. they would find no particular and special recognition of religious leaves. if you look at the history of the first amendment, the first amendment is there to protect religious freedom and freedom of conscience. the other freedoms are there to help protect freedom of conscience. it is the first freedom. as late as 1944, when the supreme court in the middle of world war ii, was protecting the right of americans who have a religious objection to the pledge of allegiance of the flag, said that freedom of conscience, embodied in the first amendment, was in the

north star of american freedom. i would long for such a court to be reproduced today. but the administration's position was so extreme, that it lost nine to zero. do you realize how difficult it was to get all nine of our supreme court justices to agree on anything? they rejected this in a nine to zero decision. in nashville, where i live, one of our finer universities has gone amok. it is like alice through the looking glass. christian organizations on campus cannot require that the leaders of their organizations adhere to the tenets of faith. that is beyond comprehensive. it shows you that -- political correctness can lead to the loss of thought.

i want to talk about the government mandates and hhs. this shows either a hostility to religious freedom, or a complete ignorance of the first amendment. it seems to be there not any other alternatives. this debate is not about contraception. it is about coercion. .. that every human being has a god given right of freedom of faith

and conscience due to our forefathers persecutions, persistence and insistence, this freedom is acknowledged and recognized in the first amendment to the constitution of the united states. the free exercise of religion goes well beyond the mere freedom of worship concept so often ballyhooed by secularists today in our culture. for them, freedom of worship is restrict it to church and home and maybe not even there we have cases of the time the zoning commissions to try to restrict how many people a couple can have in their home for a bible study because it causes traffic congestion. free exercise of religion is far more robust and includes the right to share one's faith and to live out the implications of one's faith in the social and economic spheres. in other words, the freedom to

exercise their act in the right not to be coerced. we must not stand by and allow our god-given rights to religious freedom guaranteed by the bill of rights to be atrophied, neutered and confined and restrict it to mere freedom of worship. as cardinal dolan is administered through 22nd letter to his fellow cat bishops, the obama administration has attempted to reduce the free exercise to a privilege, to a privilege are currently practicing their exemption from an all encompassing extreme form of secularism. indeed i think i can make an argument that this extreme secularist mindset embodied in the hhs mandate violates not only the first amendment's free exercise clause, but the establishment clause as well. when the federal government asserts the right to universally

mandate action, or religious convictions and then grant exemptions to those it so chooses, the government is behaving carelessly lake is secular theocracy, granting ecclesiastical indulgences to a chosen few. our forefathers knew how tenuous, unreliable and intolerant it could be. roger williams, 17 century baptist minister and founder of rhode island said dan has no powers to make laws to buy and conscience in on to say that for us in person's conscience was of the soul. thomas jefferson, chief drafter of the declaration of independence and our nation's third president argued in 1779 during the campaign for the virgin active establishing religious freedom that to compel a man to furnish contributions of money for the propagation of

opinions that she disbelieves and the poor is sinful and to radical. when our country was perhaps its greatest peril ever in 1775, when invasion fleet of 200 ships and 35,000 troops, the largest temptation to leap great britain until norm at the left and glenn to reconquer colonies, and every able-bodied man listening to the continental congress granted a right of conscious objection to those buried in some quakers who believed for religious conviction that violence was always wrong. from our beginning, even before a declaration cometh before a our constitution, this has been the northstar of american exceptionalism. a police that no one has the

right to coercively interfere with another person's relationship with his or her god and to try to do so is so great. the declaration that starkly. there are three major threat to our freedom. one assistant sanctity of every human life. you know, the idea that we are all endowed by their creator with certain inalienable and among these is the right to life, whether we are normal or not, whether we are terminally ill or not, whether we have been born yet or not. for a human being we have a right to life and liberty and the pursuit of happiness. and secondly, the basic foundational unit of american society. if human society.

and third, religious freedom. i believe we can win this fight to defend our rights as they were giving down to us, but we must all be willing to stand up and tell the government know. the government does not have ultimate authority over people of faith. it is one reason they don't often -- secular salt like people of faith because the ultimate authority for us is not the state. we render under seasons country and caesars the things that are caesar's and to god the things that are god's spirit ultimate allegiance belongs to our god is understood by our conscience. thank you. [applause] >> thank you, richard. the next you speak will follow me to the podium in this instance and the next speaker is accurately described in the

conference brochure as the public orthodox judaism washington as accurate, perhaps not complete orthodox judaism in the united states plus being the public faith does not always pay well. our next speaker draws a paycheck a working man's the executive director of public policy for the union of orthodox jewish contribution at harvard law school began a successful career return a manhattan, but moved into what we should call public policy and has been a real fixture of public resource again which is landed and i think perhaps to a lesser extent moral issues of public policy. our next speaker is nathan diament and has become the go to person of public faith in public voice of orthodox judaism. all that is true. but i think it's doesn't quite

appear, although you can see their reputation as someone who's not only a talker, but a doer. a person in the trenches, but his reputation for fair-mindedness and for what i think we should call nonpartisan contribution to the highly contentious area of public debate. if a person who is called upon, got it i republicans and democrats alike to serve on the state council and really take it to be neither liberal nor conservative, neither democratic or republican, the jewish. nathan. [applause] >> thank you for that kind introduction, professor bradley may also want to add my congratulations to brian and add on this wonderful conference and wonderful project.

king solomon and ecclesiastes famously wrote there's nothing new under the side and i am here to counter the theses of our title at the unprecedented grad that for better or worse at threat of liberty that we face an immediate value they are not unprecedented. but i am not saying that to comfort you. they are not unprecedented, but they have the current controversies that have given them more visibility. what do i mean? i am an attorney by training. the other compression i will make, catholics present, as my day job is as a lobbyist. i know it's a dirty word, but it is what i do on behalf of the community and the issues they care about. that gives me perspective of what goes on a trenches, particularly in the legislative arena, which is construct even setting the context for the

threats we face today to religious liberty. i want to take us back to 1990, when the supreme court handed down its decision in a case of employment division versus net in an opinion by justice go the, the court threw out the notion of free exercise of religion to religious liberty advocates prevailed for many, many years. before then the prevailing understanding with an order for a government law that was generally neutral. it was not targeted at religion in any particular way, but a natural law and order for it to burden the free exercise of religion cannot be struck down as an infringement has to be -- the government had to show us concerning a compelling state interest and that means that he was serving that interest were the least restrictive upon religious liberty.

so in that particular case the surest hand was whether native americans could be using peyote as part of their religious worship services. could the government research that in the service of the broader principle of outlining, of outlining hallucinogenic drug use, it better, et cetera. to what happened in that case under the pen of justice scalia was that the compelling state interest please restrict it means standard was thrown out in the standard was reduced for the protection of exercise. if you adjust a lot of stability that ways demonstrate against religious freedom, if the government had a rational basis, and i would be sufficient. it's about was the reaction? the reaction to such a broad coalition stretching from the far left of the far right gathered together, worked with bipartisan champions in congress who sat with ted kennedy and

orrin hatch to move pieces of legislation called the religious freedom restoration act, which passed in 1993 overwhelmingly in the congress not to legislatively reinstate the compelling interest least restrictive means and standards. a few years later the supreme court justice says enqueue congress, we get the last word. it strikes from the religious freedom asterix and not in the place of state laws. in the city of ernie versus florida case. and one of his early rank with court area decisions, designed to contrast federal congressional. as with regard to the state spirits of the right of coalition gets back together. the supreme court struck down by prayer. let's get back together and write a new love, which we can pass through congress, which will try to tailor the new principal of the supreme court

of florida never any case. while vande fissures began to become evident. the coalition against stretching from the southern baptist convention, the reform jewish denominations, everybody in between. secular and multiphase started designing a statute can would've been called to religious liberty protection act. everything of a cumbersome acronym that would have substituted riffraff, but this again would've been a broad reinstatement of the standard across all kinds of cases, all kinds of issues. it would've again sought to reinstate the standard of the government can only infringe a religion than interest in doing it in the least restrictive means possible. then the coalition fractured on the coalition principally fractured because by this point in the late 1990s, a number of

folks who read an organization advocating for women's rights and for in particular saw at a broad standard like that is being counterproductive to the agenda they were pursuing. if you had brad standard in which government allies had to overcome this compelling interest in this restrict it means test that would inhabit, if not prevent various initiatives put forward by women's advocacy groups and advocacy groups in particular from being able to go forward. and as they are power mounted politically, that resulted in the congress, which had previously passed the religious freedom restoration act overwhelmingly. that caused the support in congress to begin to wane. and in fact the broad bill, the

religious protection act was passed to the house of representatives by a majority vote, but then it all coming to the senate because of these political tensions. fast-forward to the end of this chat chair, the coalition has to go back to the drawing board and the statute was passed as a more unfortunate acronym is called the religious land use and institutionalized persons act and only reinstates the compelling governmental interest standard of this restrict indian standards with regards to look to category of odds. there is a link the unfortunate pattern in this country rezoning of land use laws have been used in a very aggressive and discriminatory fashion against houses of worship. so now if you want to use alien to statute, zoning statute to try to prevent a church or synagogue or a cabbie from coming in your community come

you have to meet the compelling as touche. people who are incarcerated or institutionalized have -- they have a unique set of issues that occur to some amount of religious accommodation as well. the coalition could not hold to reinstate the principle that across all kinds of categories, all kinds of issues, health care, employment, so on and so forth could not hold that coalition together, could not hold bipartisan support together to reassert the standard by the time we reached the year 2000. president clinton signed the more restrict state land use and institutionalized persons act into law in late 2000 before he left office. this pattern can also be seen in another piece of legislation in the up in the context.the start of a broad coalition to protect religious people in the work place. for many years we were pursuing

the religious freedom act which was amended in the civil rights act of 1964 and reinstated a high level of protection for people of faith in the workplace. it would've not mandated, but certainly encouraged and prodded employers to accommodate religious needs of the workplace. some religious individuals who have scheduling needs in order to observe religious holidays could be able to have their schedules shifted to accommodate their holiday schedules of people in each wear religious clothing, whether it's religious cult cop armando strasse or headscarf for a turban or have you could wear that in the work case subconscious issues, whether it's for says or lawyers who don't want to work on death penalty cases or anybody else in between if they have a conscientious objection again couldn't walk into their bosses to have a religious objection and therefore you need to let me off with no consideration whatsoever, but it did to the

balance in favor of accommodation. this was propounded on a bipartisan basis. our lead sponsors of the sun over john kerry and rick santorum. you didn't see those two coming together too often. we had again support from left to right across denominations, but it was again stymied by the same groups that identified before, by progressive women's advocacy groups who do not want to see any accommodation for pharmacists and pharmacies. they did not want to entertain the notion that a pharmacist and say, i'm sorry i don't want to dispense morning-after pills. it's against my conscious. the lab would've provided that the woman is still entitled under the lie to get the prescription so another pharmacist on duty would have provided filling a prescription. there wouldn't have been any less of that particular

scenario, but the conscience of the objector but it then protect it. that is unacceptable and there were similar hypothetical or even real world objections from the community as well. if you're a license clerk in the city of boston they don't want to visualize this is, you'd rather someone else at the desk to do it, the couple can get their license, mr. conscience is protected. that is unacceptable. so this piece of legislation also would stymied in stalled because of the tensions. the last example i want to give more recently is what happened with regard to not yet enact it, but one of the priorities of the civil rights community generally is called the employment nondiscrimination act, which would be an employment discrimination in the private sector and basis of orientation. before 2006, when that legislation was introduced year after year, it contained a very clear and simple exemption for

religious and lawyers. it literally said the nonemployee to religious employers. post-2006, the congressional elections had changed and again there was an emergence of greater political power in the part of the proponents of this kind of legislation. they took the one sending exemption and rewrote it into three paragraphs. now you don't need to be a lawyer or lobbyists to note that if you turn one sentence into three paragraphs come you're making it a lot more complicated than you're probably also narrowing what was in there. that was indeed the case they wanted to dramatically restrict the exemption for religious employers with regard to whether or not they could be on the hog for hiring or not hiring people in the basis of orientation. because a religious fight. this is not an enact it committed to the religious

issue. we have decoded the house with the catholic bishops and you can't go forward without a proper religious exemption and in fact, we are able to prevail and have a more robust protection in their monopoly to the liking of everyone, but much more repressed than what the proponents would've wanted. and so it is small victory there. as we say, the legislation has not passed. so the threats we see today, issues that have been mentioned, the hhs mandate with regard to employment, other things going on unfortunately are not at present and it. there are capstone than a trend that have been building for several years ago when joe lieberman was nominated to be vice president of the united states during the 12,011 election was an unprecedented event. there's a jewish american on the

ticket, but it is also a capstone of many things happen before hand in terms of how americans use, including orthodox have been accepted and be able to be full participants because of the wonderful blessings of liberty we have in america. when stephen breyer was nominated to the supreme court united states than he was going to be the second jewish justice said in the court, now their are three companies going to be the second, nobody commented on the fact that there's going to be two jewish justices on the supreme court went for decades there have been a jewish state, one jewish seat held by cardoza and so on. by the time buyer was nominated, it was really no big deal because that was a capstone on a trend. here to unfortunately we are experiencing that much more visible capstone on a trend that

has been building quietly in washington, quietly and political circles on capitol hill and is now become more visible to the american public at large. i suppose though there is a blessing in a. maybe we should try to find that. in the same book of ecclesiastes, king solomon famously wrote the passage is telling us for everything there is a season any post those passages and payers. so there is a time to build a time to tear down, et cetera. and perhaps -- perhaps one of the messages and that is that things that are valuable in life come in situations where sometimes you take steps forward and sometimes you take steps that. sometimes you're in a creative mode and sometimes unfortunately we are confronting a challenging or destructive note. but it is the creative tension natural to life that has to bring us forward and we have to

also realize that there's anything in life and in the world we cannot take for granted because they been up for in a time of tilting, king solomon is likely going to be a timer going to be tearing down. it might be a case that for too long many of us in america have taken the next interview and expansive privilege for granted. these threats, these dark clouds on the horizon and religious liberty have been building for some time and now perhaps it has increase visibility and discussion and increase debate and activism in support of on behalf of religious liberty will both help us appreciate more, but also spur us to action where we can not only retake or put aside or defeat challenges confronting us, but advance religious liberty and make his mark and fit for all of us for generations to come. thank you.

[applause] >> thank you, and a thin. speaker, bill galston is a public intellectual and i mean that as a very high compliment. bill is a member of a diminishing breed of men and women who effectively combine advanced scholarly accomplishments of public engagement and even with the goal of effectiveness and influence who now holds a cherub workings, he is there a say card-carrying academic political theorist. his 1991 book called liberal purposes, goods, virtues and diversity in the liberal state is widely regarded as an important book invaluable contribution to american political theoretical discourse

and a very important book. i still think it is underappreciated. not is largely regarded as the important work that it is. i think it is an invaluable contribution to the understanding of modern liberalism because it is one of the very few books. i can think of only one other, which in a full way takes up the project to what i would call liberal perfectionism or perfectionist liberalism. the other book i'm thinking a morality of freedom. i think the book is absolutely important. as a public intellectual, which means to get around not only to campus, but the white house is literally that after he resigned the book on perfectionist liberalism, dosimeters come he served as policy adviser for president bill clinton. you can think of them i suppose there's no secret he has command of at least what the last of center. you can think of bill as a liberal counterpart as robert

george, who may be the secret is some of the bloodiest conservative. you can think of bill as rodney george about the banjo. [applause] >> are we at the jazz piano. >> i am going to focus my remarks on the recent statement of the u.s. bishops concerning religious liberty, a document that in my judgment are sustained reflection. in doing this, we have to do our best to teacup or inquiry from the overwrought polemics of our polarized contemporary publics. the church in my judgment is not conduct any more unemployment and the obama administration is not conduct in the war and religion. there is instead a genuine disagreement over the respective

roles of religious obligation and civil law. this disagreement takes place against the back drop of an injury in fact. there is no guarantee the requirements of citizenship and faithful prove fully compatible and a religious leader verse and not theocratic society and there's also disagreement about what to do when they come into conflict. i propose to examine the bishops statement not simply as an intervention in political debate, though it is that, but a document grounded in interpretation of history, constitutionalism and ma as well as an empirical analysis of the current situation. i speak as you've heard as a political theorist, when defended the principle of maximum feasible accommodation for the practices of faith based organizations and appointment number for and religious issues

generally, as a critic of the obama administration's initial announcement on the services and co-author of a recent workings report that sympathetically considers a conscious space claims of health care providers. nonetheless, many of you will not sympathize with the argument that i'm about to me. i strongly suspect that i am not preaching to the choir. the minister with pope benedict's january 19 address to the u.s. bishops, which the document and discussing quotes extensively. the pope cites concerns about certain attempts being made to limit the most cherished of american freedom, freedom of religion. he expressed worries about concerted effort to deny the right of conscientious objection on the part of catholic individuals and institutions with regard to cooperation in intrinsically evil practices and also about a tendency to reduce religious freedom to mere

freedom of worship without guarantees of respect for freedom of conscience. i suspect that muslims whose right to construct mosques is under assault in communities around the country would be thrilled to enjoy secure an unquestioned right to mere freedom of worship, but i digress. as the pope is no doubt aware, while freedom of religion is indeed most cherished in the united states, is far from slow, even in core matters of worship. pre-exercise doesn't have the right to conduct elaborate by the meeting in a residential neighborhood at 2:00 a.m., nor would anyone seriously argue that claims a religious free exercise extend to human sacrifice. when i was in the white house it was my sad duty to receive numerous allegations of christian scientists and to inform them that federal laws on child abuse and neglect trumps their conscientious beliefs as to the fore in the medical care

that her children sugars used. there are some bedrock civil concerns that the law may enforce regardless of their effects on particular religions. the scope of these concerns as a matter of continuing debate. consider famous episode in american history. on october 29, 1918, the national prohibition act popularly known as the post at, which created the legal definition of intoxicating liquor and specify penalties with reducing it passed over president wilson's veto is to allow for 14 years. the act created a number of exemptions to the proposition ashamed of which one is especially new worthy. attacks stated that nothing contained should be construed as applying to whine for sacramental purposes are like

religious right that prevent the sale or transfer of wine to rabbis, ministers, priests or officers duly authorized by churches and congregations. now, if the act had failed to expand wine for sacramental purposes, there would've been both a political firestorm and a first amendment challenge. would that challenge has succeeded quiet this is not a peripheral issue. the use of sacramental wine lies at the heart of more than one religion. the code of canon law the catholic church prescribes that the most holy sacrifice of the eucharist must be celebrated and bad and a mind to which a small quantity of water is to be added close quote. for its part, jewish law command the drinking of wine during the passover seder, specify not only to famous for cuts, but a minimum quantity to be consumed

as anybody who has participated in the seder knows there is no maximum quantity specified by law. comprehensive prohibition without exemptions would have prevented the full shoes and catholic imac team as they are religious requirement. asked if already heard when a parallel issue came before the supreme court in 1990, justice antonin scalia come a famously stout catholic poverty majority opinion holding the ceremonial use of pod a native american religious right warranted -- did not warrant exemption from drug laws of general application. at the heart of the majority opinion versus smith was the concern that such accommodation creates a system in which each conscious is a law unto it solves. the legislature may, if it chooses, right accommodations and to lock. but in the absence of visions under law, individuals may not claim exemption from the law as

a matter of right. this principle implies that if congress had not included religious exemptions from the full set act, neither catholics nor substitute would have a claim against it. it is deeply misguided. nonetheless, the court has not overruled it in the two decades since it was handed down. the reactions at the start as you've heard not only the religious freedom restoration act of 1993 in the religious act, but also i love to read judicial decisions at various levels of federals stem testified to the unresolved debate over the limits of the conscious space claims again proud legislation. this brings me back to the bishops statement, which goes well beyond pope benedict in a key respect. while the pope focuses on claims

of conscience, the bishops emphasize distinction between conscientious objection and unjust laws. conscientious objection permits some relief to those who object to a law. and unjust law is no law at all. it cannot be obeyed. in the bishops insist if we faced the prospect of unjust laws, then catholics in america must have the courage not to obey them, close quote. to my mind, this is a remarkable argument on several levels. it's difficult to accept the surface. and our pluralistic society agreement on what justice is on what it requires is incomplete. each individual group is entitled to make a public argument about justice and there is a place for civil disobedience, a place that i cherish. but to avoid anarchy, public decisions about justice embedded in the are entitled to

substantial affairs. but it soon are you and a pedigree that justice rope less than in fact it is. then one of clinics most human lives far short of perfect justice and are in some important respects i'm jazzed. are we required to disobey all of them? surely principles we must do our best to weigh the good against the back, but just against the unjust, to reach in all things considered judgment. there are many catholics do believe that the budget, the house of representatives recently endorsed imposes unacceptable burdens on the poor and violates core principles of social justice that senders that in the catholic tradition. if that budget were to become mom, what these catholics be morally obligated to disobey a? this brings us to the most

remarkable feature of the bishops argument, their insistence a lot has unjust and we must disobey it. it's easy to accept a last-minute revelation of the less unjust be made disobey it because they have a moral warrant to do so, but there is, i needn't remind you, huge gap between may and must. the principle we are for peyton to participate is far too broad. we participate in evil to some extent whenever our tax dollars support activities that violate what we believe to be just and right. are we obligated to stop paying taxes? here again principled casuistry is needed to remaster it best to determine the degree of participation, its proximity to our remoteness from our agent the and the balance of justice and injustice in the act. in the spirit of charity, i is saved for last, what i regard as the weakest point of the pieces.

when civil society institutions are intertwined with public programs, government will this attach conditions, some of which may be indeed i suspect are bound to be at odds with reticular faiths. there's room for argument about legitimacy of specific requirement; have to vote on constitutional convention, ask the government may not require. the church could press that regulations reach this limit. the bishops do no favor by framing the straightforward violation of religious liberty. religious is one. in the state is another. they are two cases to consider. first, for the church received money, it does not become god's money. and may well be that sees their

set refrain from attaching conditions to the receipt of public funds and in so doing encourage the widest possible participation programs that advance to the common good, but for better or worse that a season's decision. is that he civil society institutions to decide whether conditions are too onerous to bear. second case, nongovernmental organizations are usually allowed to pursue their chosen course using their own resources, but not always. for example, according to federal law, no agency can refuse to authorize a good option because it objects to placement of a child across racial or ethnic lines. this is not a condition imposed on the receipt of funds. it is rather a per civil rights provision whether or not money changes hands.

since 1983 moreover, when the supreme court handed down its decision in the bob jones case, federal law has allowed the internal revenue system to withdraw tax-exempt status from any institution found to be practicing racial discrimination and majority decision signed by eight justices, the court ruled the institutions including religious institution seeking tax-exempt status must not only serve a public purpose, but do so in ways that are not contrary to establish public policy to serve the public interest and are not grossly at odds with what the eight-member majority called common community conscience. many religious organization take the position that opposing same-sex adoption cannot be equated with opposing comparable interracial activities. as a matter of fact in mind that is mostly correct for now. some states the party moved to settle the issue in favor of

same-sex couples and more, but not all are likely to follow. there is no guarantee that public opinion will converge on what justice requires. the conscience of the community has often inheritable continue to do so. there's compelling reasons for that matter states to carve out protected spaces for dissenting moral voices. but in the end, the tension between the lives of the state and demands of faith cannot be fully resolved. it can only be managed, which means that understanding and goodwill on both sides are essential. these are scarce virtues and are shrill and divided times. i conclude that the forlorn plea for another scarce virtues, and for shoe essential to public as well as private life, namely assent of proportion. yes, the obama administration in my view got it wrong with its

initial foray into the implementation of the affordable care at, but unprecedented for? what about the mormon church which the federal government of the united states mercilessly hunted for decades finally to adderley legal extension. but about efforts to outlaw parochial schools? what about the smith decision itself but what about the other side of the story? ongoing efforts to reverse and redress threats to religious liberty, the religious freedom restoration act, the religious land use and institutionalized persons act. recent reprint court cases defending an expansive understanding of religious liberty. or what about the police recently submitted by notre dame university namely that the contraception mandate regulation

at the facial violation of riff for a? i agree with that. i think it is. i expect federal courts will so rule. this is hardly the first clash between religious organizations and the ramified it dignities that the modern state. it will not be the last. it is not a fatal civic disease. it is a chronic condition faded to manage as best we can. thank you. [applause] >> thanks, bill for the very, very thoughtful remarks. it's a conversation about religious liberty that most of the people present and on the panel are believers, so maybe

the best to cultivate the last at this point. i know you're thinking of caffeine or the restroom and they are tired of listening to people speak, but we do have some time left. what i propose to do in a half-hour before we have to break, we have to break for lunch in a timely way. one member of the panelists have appointments for lunchtime. so we have to end on time, but i do propose to skip the 15 minutes or so that i was thinking for a conversation across the podium. and i have a few remarks to make by the conversation to this minute and that will go to q&a from the audience. so hearing objectionable procedure map passion. one of the benefits of going last in a line of distinguished speakers is that whenever repaired remarks i have, and i did have some bush will put on

the record of this conference and family, the magpies have been enriched by the conversations than it seems to me might be most helpful if i could add the following tip, one which i think has been referred to in the course of the conversation so far, but not really developed. then step back a little and take the measure of the nature of the threat of religious liberty at hand. there's been coming in now, bill spoke about the bishops claim that there's an unprecedented threat for attrition to religious liberty at hand. you know, i think that is true. it was a lan port. the real question is in what way or ways since the threat today different and more serious than other threats? so let me take a look at that for the reasons following reason is because either of the following -- anyone of the the

following three events form a conversation dispute about precisely the hhs mandate moot have one of those offenses known to take place no later than june 29, when the supreme court resolved the lawsuit about obamacare in general and it should be how determined by the court that obamacare such as an inseparable from individual mandate, not the hhs mandate and that all of obamacare would be invalidated. and with that kind of the hhs mandate because it pays him the authority obamacare. of course it is the first tuesday in november. if there is a president at this time next week there will be no more hhs mandate. or those two possibilities for repeal it below, the losses presently unfiled will eventually be in the supreme court and i agree that i think this is common to mandate stands in peril of being invalidated by

the court and i think it's a very strong possibility. my own judgment is that the very difficult administration of lawyers to convince the court that the mandates narrow exemption is the least restrictive means of achieving the administration's goal. the ball as compelling interest, name and i'll just reach of the word of president obama on february 10. this seems to be the heart of the aim is to mandate. every woman should he and control of the decisions that affect around how. now, whatever you think of that goal, it seems to be the goal and even assuming a chord team at compelling, it still seems to me in light of what was said earlier about a couple of hours beakers about the casualness of the adoption of the mandate by

secretary sebelius and her advisers seem to have no empirical studies about comparative effect of ms. another means to achieving the goal, assuring every woman is in charge of her health. my other judgment is they will see the sun will contest the main date on a different ground. the administration's best hope and will take my advice. the best hope is to say this is not a substantial burden for the administration is backed up enough that it is not making the the churches or institutions pay for or more literally provide the contraception and therefore it is not a potential but i think that would be a hard sell. i think the mandate thankfully will go away sooner or later, hopefully sooner. but it is the product as one of our speakers said, of underlying forces, but actually underlain choices, can action, answer purposes.

don landry talked about the viewpoint of the ideological viewpoint of the medical profession. i think it was the knave then he is the capstone trend. the mandate didn't drop the parachute from the heaven and despite the fact secretary sebelius was lackadaisical if you will about the mandate while there was on autopilot. this is a product of the fact that the mandate is antonin ericsson and shannon for easy calls for her, they given the body of commitments that she called, it wasn't hard to see that the mandate should be what it is. i won't pursue this further. i want to make two points about what is new in the administration of religious liberty. but let me put aside for the development the emerging orthodoxy about what is called

equality or freedom that would include contraception, abortion, same-sex marriage. this is an emerging afghan emerging orthodoxy of sort, which many people would have occupied or most fully the public square. but i'm not going to say more about that. religious liberty was quite right that it's unprecedented heard to mean, just the day just for the largest of magnitude and some very flat-footed way is quite right to amend this is not the worst it's ever happening. i think it is bigger than some examples of possibly worse things because it is a federal mandate unlike the law that would've put catholics whole set whole set of business in the 1920s and make jehovah's witnesses case raised a hand salute their flag in the 1940s. those are state actions. that is they were, they were

sweeping national norms and requirements. so this mandate being a national guard boxer competition elsewhere. i'll mention one and all mention another. on some measure of magnitude to mandate is not a competitor for the worst title would be at all ds churches prevail in the late 1970s with the federal government's sprawling on the 100 year campaign vis-à-vis the american indian as they were called. now i will put any of the details, but no doubt the government campaigns vis-à-vis all ds on the american indians were larger and more appointed attempt to extricate a religion. but they're different. they are different in important way. again, they are worse than this mandate, that they are different. in both instances, the attack upon religion was hard.

actually small part of a wider campaign by the government and the one case against mormon the adequacy or again zion if you're on the inside. but it was trying to establish effective political control over how a ds church members and really resorted to attacking zion, the lds church members fear that religious radical social life was one unit. you might say the government introduced separation of church and state great american ndn said the properties have inanimate things straight again, the government had nothing good to say about that, but it is really about tribal social order as an impediment to the indians integration into american life. so actually it's the government's campaign as a consolation but in fact was pro-religion. so the idea was that to americanize, assimilate

christianize the indians with all the same thing. so they are different. there've been campaigns to assimilate a body of people totally been there all. now were talking about something happening 50 years into the institutionalization and america online culture of a kind of religious pluralism. we live in the air much different ideas about religious freedom. and about the scope of the term religion. it is uncharacteristic, unusual, anomalous, unprecedented for this kind of thing to happen now , having nationwide impact of a certain proportions among hundreds of religious institutions. right here, and a pork more or less quickly to two things happening with the understanding of religious liberty. again not the data instigated by kathleen sebelius or cut up in

the west wing a year or so ago, but the mandate and black efforts by administration reflect, i think, the following two judgments. one, that the stand on the emerging orthodoxies about for film and that this be an anti-contraception or anti-same-sex marriage or perhaps a pro-life idea about when people did, which is that fertilization, it is increasingly identified with religion. that if it is not reasonable to oppose contraception, the people to oppose contraception, but they would be religious people. so that is one thing and motion. it is a kind of marginalization of a certain set of viewpoint, which in some cases they be quite widespread to religion. religion again dissent about

contraception and same-sex marriage again people begin at fertilization are then branded as the product of the mindless bias or prejudice or religion. religion being a species of violent. i submit to you and i want to have a to prove it, therefore false and off all your counterclaims by saying i didn't get into that, but i think what is happening is a body of people with certain moral views about contra issues like abortion, same-sex marriage are being told by outsiders, that's a religion whether you know it or not or whether you like to admit it or not. in your religion, your dog dream, they are not reasonable. i do hold them in some limited strange sense they may be true. they are beyond rational defense. the rationally defensible. they don't have any traction on the public sphere.

so religion and doctrine they are at the speeds wished into the space reserved for beyond the rational because it is one thing. perhaps naturally follows the fact that the one describing, behind the mandate and other initiatives about religious institution. what is their value from the point of view of the public or from the point of view of the political common good? religious institutions like catholic hospitals and a catholic universities can sit caring services of all sorts from what its adoption services, counseling services, alcoholics anonymous, you name it. but is there value to the wider community? it looked to me -- it looks to me like for kathleen sebelius and others that value is a mandate. it is small and defensible. i mean, here is where i would

remark upon the apparent casualness with which the administration adopted the exemption, to very commit very narrow exemption with all these religious institutions. i'm not sure but excludes churches, but it may come back to that. but it seems to me that the exemption reflects the view that these organizations, catholic hospitals, et cetera add value to the people operating them, religious value because that's the religious motivation for them and has the religious satisfaction for them. but these are private. and so good from the idea of the public square, but that's just private. from the public square, it seems to me the value of these institutions lies entirely with the delivery of services.

hospitals are doing a good job killing people or the catholic grade schools are good test scores with them so much the better. but that is pretty much it. the basic picture that these organizations i think of that work among many people behind the mandate and the exemption is pretty much religion has value in these places privately. public is identified with secular service delivery. well, from the public and the strictly religious nature of these institutions, the religious component as such is invisible. i think that is actually what is happening. that is deeply mistaken, highly secularized evaluation of these ministries. i think that is unprecedented. i mean, we could say a lot more about the campaign against lds mini to century american indians against