called sexual equality or sexual freedom, sexual something. it would include contraception, abortion, same-sex marriage. this is an emerging, if not emergent orthodoxy of sorts which many people would have occupy almost fully the public square. but i'm not going to say more about that. religious liberty, bill galston is quite right. if unprecedented is heard to mean just the biggest or the largest of magnitude in some very flat-footed way, he is quite right. this is not the worst that's ever happened. i think it's bigger than some of his examples of possibly worse things because this is a federal mandate, unlike the oregon law that would have put catholic schools out of business in the 1920s or making jehovah's witnesses kids raise their hands and salute the flag. bad as they were, they weren't sweeping national norms and

requirements. so this mandate being a national norm looks for competition elsewhere. i think that on some basic measure of magnitude, the mandate is not a competitor for the worst title with the lds church's travails with the federal government spalling almost 100-year-long campaign with native american indians. now i won't go into any of the details, but no doubt the government's campaigns vis-a-vis lds and american indians were larger and more pointed to actually extra patepate a relig. but they're different. they are different in important ways. they are worse than this mandate, but they're different. in both instances with lds and the american indians, the attack upon religious was part -- actually a small part of a wider

campaign by the government in the one case against mormon theocracy from the outside or against zion if you are on the inside. that the government was trying to establish effective political control over lds church members and really were sort of attacking zion. the lds church's members view that religious political social life was one unit. you might have even said the government was trying to introduce separation of church and state. and american indian belief that spirits inhabit all sorts of things, the government had nothing to say about that but the campaign against the indians was really about tribal social order as an impediment to the indians' integration into american life. so the government's campaign, i don't know if it's a consolation, was pro religion for the government. the idea was that to americanize, assimilate,

christianize the indians was all the same thing. so they are different. there are big campaigns to assimilate a body of people totally. and now we're talking about something that's happening 50 years into the institutionalization of american law and culture of a kind of religious pluralism. and we live in an era of much different ideas about religious freedom. and about the scope of the term religion. so its uncharacteristic, unusual, anomalous, maybe not unprecedented for this kind of thing to happen now. have a nationwide impact of uncertain proportions among hundreds of religious institutions. but here, let me point more or less quickly to two things that are happening with our understanding of the religious liberty. not to say these are instigated by kathleen sebelius or cooked

up in the west wing just a year or so ago but the mandate reflect, i think, the following two judgments. one, that the dissent on -- or dissent about emerging orthodoxy about sexual fulfillment. that it's being anti-contraception or anti-same-sex marriage or perhaps the pro-life idea about when people begin, which is at fertilization, dissent is being increasingly identified -- dissent on those questions, with religion. that it's not reasonable to oppose contraception, but people do oppose contraception, but they would be religious people. so that's one thing in motion. it's a kind of marginalization of a certain set of viewpoints which in in cases may be quite widespread to religion. religion, dissent on

contraception, thinking that fertilization -- these are branded as a mindless bias or religion. religion being a species of bias. i won't fend off all your counterclaims by saying i didn't really get into that, but i think what's happening to that is that a body of people with certain moral views about controversial issues like abortion, same-sex marriage and contraception are being told by outsiders that's your religion, whether you know it or not or like to admit it or not, and your religion, your doctrine, tenets of your religion, they're not reasonable. now you hold them and in some limited strange sense they might be true, but they are beyond rational defense. they are rationally indefensible. they are like biases. they don't have any traction on the public sphere.

so religion and doctrine thereof is being squished into this space reserved for the beyond the rational. because that's one thing. perhaps naturally it follows from that that the view i'm describing, which is a view behind the mandate in an era exception and other initiatives about religious institutions. what's 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, catholic universities, sectarian social services of all sorts, different religious. what's their value to the community? the wider community? it would look to me, it looks to me like for kathleen sebelius and others that value is limited. it's small and dispensable. here's where i would remark upon

the apparent casualness with which the administration adopted -- not the mandate as much but the exception. the very, very narrow exception such that it excludes all of these religious institutions. i'm not even sure it excludes churches but i may come back to that. but it seems to me that the exemption reflects the view that these organizations, catholic hospitals, et cetera, have value to the people who are operating them religious value because it adds a religious motivation for them. and it has a religious satisfaction for them. but these are private delights. and so far so good you might say from the view of the public square but that's just private. it seems the value of these institutions lies entirely with their efficient delivery of secular services. that the hospitals are doing a good job healing people or the

catholic grade cools have good test scores. then so much the better. but that's pretty much it. the basic picture about these organizations that i think is at work among many people and behind the mandate and the exemption is pretty much this. religion has value in these places privately. public it's identified with secular service delivery. well, from the public then, the strictly religious nature of these institutions, the religious component as such is invisible. i think that's actually what's happening. i think that's deeply distaken. deeply mistaken. a highly secularized evaluation of these ministries. and i think that's unprecedented. i mean, we could say a lot more about the campaigns against lds in the 19th century, the american indians, against america's jews and america's catholics. recurring motif of american

religious conflict is the main stream prod stant for a long time and now more secularized, putting it to the catholics, especially to their grade schools. there's a lot more to be said. and for now, i propose, let's leave aside whether one is worse than the other because they are all different. this, i think, is unprecedented. this way of viewing religious institutional ministries. the low evaluation of them from the point of view of the polity, i think is at work and i don't think i have ever seen it any other time in american history. with that, and with the time left, please, i urge you, especially because of limited time, say what you wish. comment, question, criticism. better jokes than i've told but please do so in 60 seconds or less so we can get more people to the microphones. and there are microphones on either side of the room about one-third of the way back from where i stand. but again, i'm simply urging to

get more people to speak. yes, ma'am. >> thank you. i'm a legislator in arizona, debbie lesco. i sponsored legislation that allows employers to opt out of the birth control mandate. as you can imagine it was very controversial. the aclu and planned parenthood did a nationwide alert and i was attacked on a personal basis and so were the legislators. we did pass it. my question to you is, is there a network, and i'm hoping that we can form it perhaps today, that state legislators can call upon to help us, back us up because i was attacked in the media and it was pretty brutal and we did a good job of defending it, but it sure would be great to have people like you that would back us up that we could refer the media to. any response? >> one of the takeaways from

this knks, we hope, is the beginnings of the network and resource bank that you are describing. for that, see brian walsh for details. >> fantastic. >> yes, sir? >> i'm ted harvey, a state senator from colorado. first off, thank all of you for you efforts in being here and your comments. it was truly a delight to be able to hear your thoughts on this important topic. my question is, when you -- all of you all tended to speak about the case where the solicitor general came before the courts and made the argument that the religious institutions did not have the protections to be able to pick their own leadership. and you said that they -- it was unprecedented. and that they lost 9-1. or -- i'm sorry, 9-0. why is it, do you think, that

they took that case all the way to the supreme court? was it a political agenda? or was it a legal agenda? because oftentimes we see legal activists take cases before the courts to push decades or more down the road their agenda. >> okay. >> so what's your answer to that? >> you know, it's hard to know what their calculation was, but it was, obviously, deeply misguided. i think that their miscalculation in taking such an aggressive position in their litigation strategy backfired when two obama appointees on the court agreed with the 9-0 opinion that that position was extreme and remarkable. you know, i am not sure what pushed them into that position, although i would say that it's fairly consistent with their

position in the hhs mandate. when you look at how they drew the test, their second line of attack was basically, even if there is a ministerial exception it should be limited only to those employees who perform exclusively religious function inspects the actual opinion that came out from the court, on which all of the justices agreed, it actually said we can think of no such employees. they don't exist. and so you have written a test, an exclusively religious functions test to determine what religious employees should be protectd under this doctrine. you've written it so narrowly that it's an empty set. and i think that strategy is reflected similarly in the hhs mandate case where they have drawn the exemption so narrowly that it does little better. it covers some, but it covers such a vastly narrow group rev lidgeuous organizations that it

effectively denies religious libertiy to a much, much larger group that have enjoyed that liberty previously. so i think it's a fairly consistent -- i'll give them points for consistency at least. let me say that. it's a fairly consistent strategy to put forward arguments that are so extreme that they are narrow in protecting anyone as a matter of substance. >> nathan and then richard will respond to this question as well? >> my response is consistent with my theme of my remarks. good news and bad news for you. the good news is that the case -- this particular case was brought it was started under the federal equal employment opportunity commission. they're an independent agency in the federal government. and so the initial decisions about the eoc stepping in on behalf of that teacher and taking the case and so on were made in a regional office out in the country.

i'm fairly confident without, you know, a grand strategy by somebody back in washington. i know that from my involvement in the case and the discussions. so there wasn't a grand strategy in that regard. but consistent with what hannah said, once it got to the top, and once it got to the place where, okay, the eoc is coming into the supreme court and when they come into the supreme court they are represented by the justice department and solicitor general in particular, and the arguments that were made there. that's where what was commented on before by jerry and others is the mind-set of the administration. that's what kicked in and the extreme position was put forward and from my point of view, thankfully, was repudiated by the full court. >> richard? >> i think it was not a grand strategy as much as it was a -- it was revulatory of their mind-set. this administration you compare this administration with the

clinton administration, for instance, and it's far more monolithic in its secularist mind-set than the clinton administration was. previous democratic administration. give you an example, one of mr. obama's appointments to the eeoc is kai feldbloom who is a georgetown university law professor who has written a law journal article saying in effect, whenever the rights of gay, lesbian, bisexual and transgendered people collide with religious liberty beliefs and rights, the rights of religious people must give way to the rights of gay, lesbian, bisexual and transgendered people. i would say that's a mind-set out of sync with where the general public is. and it's one that is inherently hostile to religion. and this -- i find the obama

administration on this particular issue to be monolithic. >> next question, gentleman on my left. >> i'm representative mike mcgee from missouri. and, first of all, i'd just like to say that missouri filed that first piece of legislation to try and block the lawsuit against president obama's health care bill, and we are also right now on our primary ballot this next few months, we'll be hearing legislation trying to bring prayer back to our public school. so a couple of great things. my wife and i went to a graduation. harry s. truman high school in independence, missouri. and that was held at the lds auditorium in independence. and that is the church of latter day saints. it was at their world headquarters building. and they started that commencement out with a moment of reflection, no prayer.

do you think that has to do with the church and what they would allow them to do in that building or do you think that would be leadership in that high school that failed those children to not be able to pray before that? and then we're going to end up at that same commencement that day with a moment of reflection also and no prayer but they just skipped that completely. >> partly that curious arrangement of activities reflects a perception of what the law permits. may have been the desire of some people present to have a prayer, a nondenominational prayer but thought -- people thought that that would be held invalid by a court. they could be right about that. but other than that, i don't know what would cause the local school authorities to do what they did. if i'm not mistaken, though, missouri has a -- to change the topic just a bit. missouri has a contraception mandate but has a wide set of

exemptions if i'm not mistaken. does that sound right? >> yeah, we're trying to fix that. hopefully we'll fix that this next primary election. >> okay. yes, sir? >> steven baskerville from patrick henry college and the international journal for religious freedom. it strikes me that two features are running through all of these threats you've described. two features that we seem to be avoiding. and which do really make them unprecedented to other controversies over religious freedom in american history and western history. the first is they are almost all sexual. they almost all involve a new kind of sexual radicalism which is -- which we are seeing throughout the western world and throughout the world which i think maybe is something we should be addressing. it's very aggressive, and it's occasion -- most of the threats to religious freedom not only here but in the rest of the world. the second feature is that many of these threats are occasioned by the increasing scope of

government over private life. and that's most obvious in the case of the health care mandates but you could make the same case about marriage and other issues. the government is expanding its scope over areas that previously had been left to private life. my question is should we be expanding this discussion to encompass these larger developments? rather than the narrow question of religious freedom? >> okay. who's first? >> well, let me focus on your second point. very briefly. i think you're right. and the question is, how do we -- how do we evaluate this expansion? let me give you a couple of examples. a couple of generations ago, indeed more recently than that,

spousal abuse was considered to be a private matter, not a matter of the public law. we've changed our minds about that. in that respect, the government is more intrusive. is that a bad thing? we can discuss that. similarly, until a generation ago, there was no governing federal legislation dealing with questions of child abuse and neglect. now there is. it's not perfect, but i would argue that we are better off as a society because it exists. and so just -- this really just continues the theme of my opening remarks. that it is not ipso facto a good thing if government expands or retracts its reach, we have to attend to the particular issues at stake. and i think when we do that,

we'll come out with a decidedly nuanced view of the expansion of government and demands for government to retreat. >> anybody else on this question? richard? >> yeah, i think -- that one of the most dangerous trends to our freedom is the withering of civil society. and where government goes in, civil societies tend to recede. let's take the case of the mandate. i would take catholic hospitals and catholic charitable organizations as part of civil society. i don't think it's helpful to freedom, i don't think it's helpful to the society, for catholic charities, for instance, our catholic adoption agencies, to be forced to pull out of a state because they won't -- they won't place children with same-sex couples. which is what they had to do in

massachusetts. there are some who believe the government wants to wither these civil societies and mediate in institutions. for instance, under the stimulus package, all student loans are now run by the government. i think that's a bad idea. i'm not particularly fond of banks but i'd rather take my chances with a bank than with the federal government. you've got a little more redress of griefance. when it comes to sexual radicalism, i don't think there's any question that's a huge issue. and one where, when it comes to sexual politics, it's almost uniquely intolerant of any dissenting view. i think we need to appreciate and nurture mediating institutions in civil society between individuals and the government. not wither them.

>> i agree with your second point, that i think the increasing reach of government into the regulation of private action is partly what's going on here. i think to actually respond to something that bill galston said a little earlier, i think reasonable people can disagree on how much autonomy religious organizations should have when they receive federal funding and they are faith-based organizations. i just want to clarify and make very clear here that the federal hhs mandate has nothing to do with federal fund recognize it applies to every employer regardless of whether or not they receive federal funding. so even if you ar religious social service organization and every single one of your dollars comes from private funding, this mandate applies to you. so that federal funding argument in the context of the hhs mandate is completely a red herring. >> well, i would remind you, though, that i distinguished two cases. one of which involved the flow of funds and the other did not.

so i included the funding argument for sake of the descriptive completeness without arguing that that was the appropriate frame to evaluate the hhs mandate and i was quite careful to do that. >> well, thank you finally once again, awe the participants, especially the speakers in the audience for being an attentive audience. yours is the last question. thank you in particular. it's a good number to close on. but we do have to retire for lunch. >> quickly, can i ask a question? >> very quickly. >> so my question is religious liberty as applied to particular cases because it helps me understand the dynamic. my name is allie steenland. i appreciate the discussion this morning. if a woman had like a bed and breakfast and she did not want to rent to a gay couple or a lesbian couple if they were there for a weekend holiday, and she refused to do that, and she were forced to do that for

discrimination laws, would that be a violation against her religious liberty? would she be free to do that or not? secondly, if it were the same woman and she didn't believe in premarital sex and a heterosexual couple came and she really chose not to rent to them, where would the law stand on that? thirdly, if it were an interracial couple -- >> can we stop at two? because we're hungry. >> the other one is, what if it were the marriott corporation and it was mr. marriott's belief that he didn't believe in homosexuals sharing the same bedroom? is it size? how do you figure it out? >> i think very basically, it does depend on what the law actually is. just so far described, one, two and three, the constitution, the national framework of basic law, would be pretty far in the background. so the question would be whether a local, state laws that make specific proscriptions about nondiscrimination about places of public accommodation. what's the definition?

does it exclude mrs. murphy's boarding house, for example? it probably will. the hhs mandate applies to basically all employers if they have 50 employees. again, that's not drawn from the constitution, you might say, but in the statute. perhaps the short answer, which is all i'll have time for now, is that it varies depending upon exactly what the local law says. >> those are precisely the kinds of issues that made the coalition that i described fracture when we were trying to replace the freedom restoration act with a subsequent statute. and what was interesting, just to report to you in that dynamic, is that you had liberal members -- liberal organizations who were in the coalition who are on record, were on record then, are still on record today, being on the progressive end on women's rights issues and gay rights issues and so on, so forth, they all wanted -- they all by and large wanted a broad

statute, a broad start still put in place on the notion, sort of tying into what bill galston was talking about earlier, on the notion that you'd get your day in court, so to speak, and from their perspective, it would likely be the case that anti-discrimination principles would be determined to be a compelling state interest and there's a limited amount of ways you can serve that compelling state interest, and probably more often than not the people who would be subject to that discrimination would actually win the day and religious liberty, so to speak, would have to gave way under most of those cases. but it was still the case that it was the folks who were committed to those progressive civil rights values, they still thought nonetheless the higher standard for religious liberty should be put in the law, then we should take it case-by-case. unfortunately from my point of view, it was the view of other proponents of those individualized, if you will,

civil rights agendas that felt like, we don't really even give religious liberty its day in court, and possibly lose every once in a while, we don't even want to have that conversation. and that is unfortunately the chasm that now exists between religious liberty advocates and civil rights or other principled advocates in this arena. >> you're probably wondering why you're seated at tables and not rows of chairs. here's the answer. you're going to eat in here, or at least you're invited to. lunching available outside. you're welcome to grab what you wish and come back in here to eat. we're all going to resume or conversation at 12:30 or as soon thereafter as we can. so please, bon appetit, and thank you if you would our speakers for a wonderful conversation.