religious employers. it said this act shall not apply to religious employers. post-2006, the congressional elections had changed and there was an emergence of greater political power on the part of the proponents of this kind of legislation. it took that one sentence exemption and they rewrote it into three paragraphs. now you don't need to be a lawyer or lobbyist to know that if you turn one sentence into three paragraphs, you are making it a lot more complicated and you are probably also narrowing what was in there. and that was indeed the case. they wanted to dramatically restrict the exemption for religious employers with regard to whether or not they could, in good -- be on the hook for hiring or not hiring people on the basis of sexual orientation. we had to go through a legislative fight. again, this bill hasn't been enacted for a variety of reasons not related to the religious

liberty issue. we had to go to the hill together with the catholic bishops and seventh day adventists and say you can't move this legislation forward without a proper religious exception for religious institutions. we were able to prevail and have a more robust protection in there not fully to the liking of everyone but more robust than what proponents would have wanted. and so we had a small victory there. although, the legislation has not passed. the threats we see today, the issues that have been mentioned, hhs mandate, tabor case with regard to employment. the other things going on. unfortunately, they aren't unprecedented. they are a capstone on a trend that has been building. several years ago, when joe lieberman was nominated to be vice president of the united states during the 2000 election, that was an unprecedented event. he was the first jewish american on a national presidential

ticket. but it was also a capstone of many things that had happened beforehand in terms of how american jews and including orthodox jews have been accepted into american society and been able to be full participants because of the wonderful blessings of religious liberty that we have in america. when stephen breyer seven years before that was nominated to the supreme court of the united states, and he was going to be the second jewish justice to sit on the court. now there are three. but he's going to be the second jewish justice on the court at the time, nobody commented on the fact that, oh, there are going to be two jewish justices on the supreme court when, for decades, there have been the jewish seat. one jewish seat held by cardoza and frankfurter and so on. by the time breyer was nominated it was really no big deal because that was a capstone on a trend. here, too, unfortunately, we are experiencing a much more visible but a capstone on a trend that has been building quietly in

washington, quietly in the political circles on capitol hill and is now coming more -- has now become more visible to the american public at large. i suppose, though, there is a blessing in that. we should try to find that. in the same book of ecclisiastes, king solomon wrote the passages telling us that's for everything there is a season. and he puts those passages in pairs, right? so there's a time to build and a time to tear down. et cetera. and perhaps -- perhaps that message -- one of the messages in that is that things that are valuable in life come in situations where sometimes you take steps forward and sometimes you take steps back. sometimes you are in a creative mode and sometimes unfortunately, we're confronting a challenging or even a destructive mode. but there's a creative tension that is natural to life that has to bring us forward. and we have to also realize that

there is -- anything in life and in the world we cannot take for granted because even if we're in a time of building, king solomon instructs us there's likely going to be a time that we're going to be tearing down. it might be the case that for too long many of us in america have taken an expansive view, an expansive privilege of religious liberty for granted. these threats, these dark clouds on the horizon of religious liberty have been building for some time. and now perhaps this increased visibility and increased discussion and increased debate and activism in support of and on behalf rev lidgeuous liberty will both help us appreciate it more but also help spur us to action where we cannot only retake or put aside or defeat some of the challenges confronting us but advantage religious liberty and make it more expansive for all of us and for generations to come. thank you.

[ applause ] >> thank you nathan. our next speaker, bill, 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 advance scholarly accomplishment with public engagement and practical influence. he now holds a chair at brookings. he is, i dare say, a card carrying academic political theorist. his 1991 book called "liberal purposes, good, virtues and diversity in a liberal state" is widely regarded as an important book, valuable contribution to theoretical public discourse. it's widely regarded as a very

important book. i still think it's under appreciated. not as widely regarded as the important work that it is. i think it's an invaluable contribution to our understanding of modern liberalism because, among other things, it is one of the very few books -- i can think only of one other -- which in a full way take ups the project of what i would call liberal perfectionism or perfectionist liberalism. the other book i'm thinking of is joseph raz's morality of freedom. he's a public intellectual. gets around not only the campus but the white house, most literally. after holding -- shortly after he wrote the book on perfectionist liberalism, he sefshd as domestic policy adviser for president bill clinton. you can think of him, it's no secret that bill is a man of at least a slightly left of center. so you can think of bill as sort of a liberal counterpart to our

friend and keynoter robert george whom maybe this is a secret from some of you but is conservative. but you can think of it to simplify it a little. think of bill as robby george without the banjo. >> but with a jazz piano. i'm going to focus my remarks on the recent statement of the u.s. catholic bishops concerning religious liberty, a document that in my judgment warrants sustained reflection. in doing this, we have to do our best to decouple our inquiry from the overwrought polemics of our polarized contemporary politics. the church in my judgment is not conducting a war on women, and the obama administration is not conducting a war on religion. there is, instead, a genuine disagreement over the respective roles of religious obligation

and civil law. this disagreement takes place against the backdrop of an enduring fact. there is no guarantee that the requirements of citizenship and of faith will prove fully compatible in a religiously diverse and nontheo kratic society and there is also disagreement about what to do when they come into conflict. i propose to examine the bishop's statement not simply as an intervention and a political debate, though it is that. but as a document grounded in an interpretation of history, constitutionalism and natural law as well as an imperical analysis of the current situation. i speak as you've heard as a political theorist, one who has defended the principle of maximum, feasible accommodation for the practices of faith-based organizations. as the clinton administration's point man on rifra and religious issues, religious liberty issues

generally, as a critic of the obama administration's initial announcement on the coverage of contraceptive services and as the co-author of a recent brookings report that sympathetically considers the conscience-based claims of health care providers. nonetheless, many of you will not sympathize with the argument that i'm about to make. i strongly suspect that i am not preaching to the choir. let me start with pope benedict's january 19th address to the u.s. bishops which the document that i'm discussing quotes extensively. the pope cites concerns about, quote, certain attempts being made to limit the most cherished of american freedoms, the freedom rev lidgion. he expresses worries about concerted efforts to deny the right of conscientious objection on the part of catholic 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 a secure and 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, it is far from absolute. even in core matters of worship. free exercise doesn't entail the right to conduct a loud revival meeting in a residential neighborhood at 2:00 a.m., nor would anyone seriously argue that claims of religious free exercise extend to human sacrifice. when i was in the white house it was my sad duty to receive numerous delegations of christian scientists. and to inform them that the federal laws on child abuse and neglect trumped their conscientious beliefs as to the form of medical care that their

children should receive. there are some bedrock civil concerns that the law may enforce regardless of their effects on particular religions. but the scope of these concerns is a matter of continuing debate. consider a famous episode in american history. on october 29th, 1919, the national prohibition act, popularly known as the volstad act which created the legal definition of intoxicating liquor and specified penalties for producing it, passed over president wilson's veto and stood as the law of the land for 14 years. the act created a number of exemptions to the prohibition regime of which one is especially noteworthy. the text stated that nothing it contained should be construed as applying to, quote, wine for sacramental purposes or like religious rights and it permitted 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 exempt wine for sacramental purposes, there would have been both a political firestorm and a first amendment challenge. would that challenge have succeeded? 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 of the catholic church prescribes that the most holy sacrifice of the eucharist must be celebrated in bread and in wine to which a small quantity of water is to be added, closed quote. for its part, jewish law commands the drinking of wine during the passover sader specifying not only the famous four cups but also a minimum quantity to be consumed. as anybody who has participated in a sader knows, there's no

maximum quantity specified by law. comprehensive prohibition without exemptions would have prevented faithful jews and catholics from acting as their religion requires. but as we have already heard, when a parallel issue came before the supreme court in 1990, justice antonin scalia, a famously staunch catholic, authored a majority opinion holding that the ceremonial use of paote in native american religious rights warranted -- did not warrant exemption from drug laws of general application at the heart of his majority opinion in employment division versus smith was the concern that such accommodation creates a system in which, quote, each conscience is a law unto itself. the legislature may if it chooses, write specific accommodations into law. but in the absence of explicit provisions 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 in the volstad act, neither catholics nor jews would have had a valid first amendment claim against it. i have long argued that justice scalia's opinion was deeply misguided. nonetheless, the court has not overruled it in the two decades since it was handed down. the reactions it has sparked as you've heard not only the religious freedom restoration act of 1993 and the religious land use and institutionalized persons act of 2000, but also a welter of judicial decisions at various levels of the federal system testify to the unresolved debate of conscience-based claims against broad legislation. this brings me back to the bishops statement which go well beyond pope benedict in a key respect. while the pope folk uss on claims of conscience, the

bishops emphasize the distinction between conscientious objection and an unjust law. conscientious objection permits some relief to those who object to a just law. an unjust law is no law at all. it cannot be obeyed. and the bishops insist that if we face today the prospect of unjust laws, then catholics in america must have the courage not to obey them, close quote. now to my mind, this is a remarkable argument on several levels. a difficulty lurks at the surface. in our pluralistic society, agreement on what justice is and on what it requires is incomplete. each individual or 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 law are entitled to

substantial deference. but assume that agreement on justice were more robust than in fact it is. then what? most human laws fall short of perfect justice, and are in some important respects unjust. are we required to disobey all of them? surely principled -- is essential. we must do our best to weigh the good against the bad, the just against the unjust to reach an all things considered judgment. there are many catholics who believe that the budget, the house of representatives recently endorsed impose unacceptable burdens on the poor as understood in the catholic tradition. if that budget were to become law, would these catholics be morally obligated to disobey it? this brings us to the most remarkable feature of the bishop's argument.

their insistence if law is unjust we must disobey it. it's easy to accept a less demanding formulation if a law is unjust, we may disobey it because we have a moral warrant to do so. but there is, i needn't remind you, a huge gap between may and must. the principle we're forbidden to participate in evil is far too broad. we participate in evil to some extent whenever your tax dollars support activities that violate what we believe to be just and right. are we obligated to stop paying taxes? here again principled -- is needed. we must do our best to determine the degree of participation, its proximity to or remoteness from our agency and the balance of justice and injustice in the act. in the spirit of charity, i have saved for last what i regard as the weakest point in the

bishop's thesis. when civil society institutions are intertwined with public programs, government will always attach conditions. some of which may be, indeed i suspect are bound to be at odds with particular fates. there's room for argument about the legitimacy of specific requiresments and some schol vars developed a here to reeve unconstitutional conditions. acts that government may not require. the church could try to press the case that various regulations breach this limit. but the bishops do their case no favor by saying it's a straight violation of religious liberty. religious liberty is one thing. cooperation with the state is another. there are two cases to consider. when the church receives money, it did not become god's money. it may well be that caesar should refrain from attaching

conditions to the receipt of public funds and in so doing, encourage the widest possible participation in programs and advance the common good. but for better or worse, that is caesar's decision. it is then up to civil society institutions to decide whether the 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 perspective adoption 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 se 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 allow tax exempt status from any institution. in its majority decision signed by eight justices, the court rules that institutions, including religious institutions seeking tax exempt status must not only serve a public purpose but do so in ways that are not contrary to establish public policy that serve the public interest and that are not grossly at odds with what the eight-member majority calls common community conscience. many religious organizations take the position that opposing same-sex adoption cannot be equated with opposing comparable interracial activities. as a matter of fact in law, that is mostly correct for now. but some states have already moved to settle the issue in favor of same-sex couples and more, though 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 erred and will continue to do so. there are compelling reasons within modern states to carve out protected spaces for dissenting moral voices. but in the end, the tension between the laws of the state and the demands of faith cannot be fully resolved. it can only be managed, which means that understanding and good will on both sides are essential. these are scarce virtues in our shrill and divided times. i conclude with a probably fo forelorn plea. namely, a sense of proportion. yes, the obama administration, in my view, got it wrong with

its initial forray into the implementation of the affordable care act. but unprecedented threats? what about the mormon church which the federal government of the united states mercilessly hounded for decades finally into utter legal extinction? what about early 20th century outlawed parochial schools? what about the smith decision itself? and 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 supreme court cases defending an expansive understanding of religious liberty. or what about the brief recently submitted by notre dame university, namely that the contraception mandate regulation

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

are thinking of caffeine or the rest room and maybe you are tired of listening to people speak, but we do have some time left. and what i propose to do in the half hour or so before we have to break, we have to break for lunch in a timely way. one or more of the panelists have appointments for lunchtime so we are going to end on time. but i do propose to deny our panel this opportunity to have at each other. so i propose to skip the 15 minutes or so that i was thinking of for a conversation -- further conversation across the podium and i have a few remarks to make which are occasioned by the conversation to this minute and then we'll go to q&a from the audience. so hearing no objection, we'll proceed in that fashion. but one of the benefits of going last in a line of distinguished speakers is whatever prepared remarks i had, and i did have

some, which hopefully will be put in the record of this conference in some way, but my thoughts have been enriched by the conversation to date. it should be most helpful if i could add the following perspective, which has been referred to in the course of the conversation so far but not really developed. and that is a step back a little bit and take the measure of the nature of the threat to liberty at hand. there's been, you know, bill spoke about the bishop's claim that there's an unprecedented threat or intrusion to religious liberty at hand. now i think that's true. but as i said earlier, unprecedented itself is a kind of limp word. the real question is in what way or ways is the threat today different? and more serious than other threats? so let me take a look at that. for the reason -- following reason that because either of the following -- any one of the following three events will make

conversation dispute about precisely the hhs mandate moot. one of those events is going to take place no later than june 29th when the supreme court resolves the lawsuit about obama care in general. and if it should be held determined by the court that obama care as such is inseveerable from the individual mandate, not the hhs mandate, then all of obama care would be invalidated. and with that, the hhs mandate because it's based on the authority of obama care. or the first tuesday in november. if there's a president romney at this time next year, there will be no more hhs mandate. or failing those two possibilities for repeal if you will, the lawsuits presently on file will eventually be in the supreme court, and i agree with bill galston. i think this is what he was saying is that the mandate stands in peril of being invalidated by the courts under

rifra. that's a very strong possibility. my own judgment is that be very difficult for the administration lawyers to convince a court that the mandates narrow exemption is the least restrictive means of achieving the administration's goal for the moment assuming that the goal is a compelling state interest. the goal being namely and i'll just read you the words of president obama on february 10th. this seems to me the heart or aim of the mandate. every woman should be in control of the decisions that affect her own health, period. now whatever you think of that goal, it seems to be the goal, and even assuming a court deems it compelling, it still seems to me in light of what's been said earlier by a couple of our speakers about the seeming casualness of the adoption of the mandate by secretary sebelius and her advisers.

they seem to have no imperical studies about other means to achieving the goal ensuring that every woman is in charge of her health. my own judgment is that the administration lawyers will see this and will contest the mandates -- mandate cases on a different ground. i thing administration's best hope, i hope you are not listening and take my advice. i hope to say this is not an substantial burden. the administration has backed off enough that it's not making the churches or institutions pay for or more literally provide the contraception. so, therefore, it's not a substantial burden. but even that will be a hard sell. so i think that the mandate, thankfully, will go away sooner or later. hopefully sooner. but it's the product as more than one of our speakers said of underlying forces but actually underlying choices, convictions aims or purposes. dawn landry used the word orthodoxy is talking about the

viewpoint or the ideological viewpoint of his sector of the medical profession. nathan used the term capstone of trends. obviously the mandate didn't drop by parachute from the heavens. despite the fact secretary sebelius seems to have been lackadaisical if you will, about the mandate it wasn't as if she was sleepwalking or on auto pilot. i think that parent indifference is the fact that the mandate, its aims and the narrow exemption were easy calls for her. that given the body of commitments she holds it wasn't hard to see the mandate should be what it is and the exemption should be what it is. i want to make who points about what's new in the administration's view, other's view of religious liberty. let me put aside further development of this emerging orthodoxy about what could