they are not 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 election, that was the first jewish american on a national presidential ticket. but it was also a capstone of many things that happened before hand in terms of how american jews have been accepted into american society. when stephen breyer, several years before that, was nominated to the supreme court of the united states, nobody commented on the fact that there were going to be two justices on the supreme court.

nobody said, oh, there are going to be two jewish people on the court. by the time breyer was nominated, it was no big deal, because that was the cap stone on a trend. here, too, unfortunately, we are experiencing a much more visible but a cap stone on a trend that has been building quietly in washington, quietly in political circles on capitol hill and is now coming more -- now become more visible to the american public at large. i suppose there is a blessing in that. we should try to find that. king solomon also famously wrote the passages telling us that for everything there is a season. he put those passages in pairs. there's a time to build and a time to tear down, etc. and 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're in a creative mode, and sometimes, unfortunately, we're confronting a challenging or even a destructive mode. but it's a creative tension that is natural to life that has to bring up forward. we have to realize anything in life and in the world we cannot take for granted. even if we're in a time of rebuilding, there's likely going to be a time that we're going to be tearing down. many of us in america have taken an ex-papsive view, an expansive view of religious liberty for granted. these threats, these dark clouds on the horizon of religious liberty have been building for some time. now perhaps this increases the ability and increased discussion and has increased

debate and activism in support of and on behalf of religious liberty, will both help us appreciate it more, but also spur us to action where we can not only retake or put aside -- or defeat some of the challenges that are confronting us, but advanced religious liberty and make it more expansive for us and all generations to come. thank you. >> thank you, nathan. our next speaker 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 accomplishments with public engagement and even with practical effectiveness and influence.

he is, i dare say, a card-carrying academic political theorist. his 1991 book is called "liberal purposes: good virtues and diversity in the liberal state." he's widely regarded as an important book, a valuable contribution to american political, public discourse. it's widely regarded as very important. i still think it's underappreciated, 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 of only other -- which, in a full way, takes up the project of what i would call liberal perfectionism, or perfectionist liberalism. you have to look at "the morality of freedom," but i think bill's book is just absolutely important. bill is a public intellectual,

which means he gets around, not only campus, but the white house, most literal. after holding -- shortly after he brought out the book on perfectionist liberalism -- those are my words -- he turned his domestic policy advisor 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 ads sort of a liberal counter part to our friend, robert george, whom this is a secret from some of you, is conservative. but although you can think of bill as robbie george without the band joke -- but we have the jazz piano. i'm going to focus my remarks on the recent statement of the u.s. catholic bishops concerning religious liberty, the document that, in my judgment, warrants sustained

reflection. in doing this, we have to do our best to decouple our inquiry from the overwrought positively he will i can 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 a disagreement over civil law. this disagreement takes place against the back drop of an enduring fact. there's no guarantee that the requirements of citizenship and of faith will prove fully compatible in a religiously diverse and nontheocratic society. there's also disagreement about what to do when they come into conflict. i examine the bishop's statement not simply as an intervention and political debate -- though it is that -- but as a document grounded in

an interpretation of history, constitutionalism, and natural law, as well as an empirical analysis of the current situation. i speak, as you've heard, as a political theorist, one who defended the prince prell of maximum feasible accommodation for the practices of faith-based organizations. as the clinton administration's point man on religious issues, religious liberty issues generally, as a critic of the obama administration's initial announcement on the coverage of contraceptive services, and as co-author of a recent brookings report that sympathetically considers the conscience-based blames of healthcare 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 19 to the u.s. bishops, which the document i'm talking about

quotes extensively. there are certain attempts being made to limit the most cherished the american freedoms, the freedom of religion. he discusses worries about efforts to deny the right of 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 a secure and unquestioned right to 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. exercise doesn't bill is 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 federal laws on child abuse and neglect trumped their conscientious beliefs as to the form of medical care that their children should receive. there's 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 29, 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 should be construed as applying to "wine for sack radio mental purposes" or like religious rights, and it permed 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 sack radio mental 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 sack radio mental wine lies at the heart of more than one religion. the code of canon law of the catholic church prescribes that the "the most holy sacrifice of

the uke arest must be used wine." for its part, jewish law commands the drinking of wine during the passover seder specifying want only the famous four cups, but also a minimum quantity to be consumed. as anybody has participated knows, there is no maximum quant specified by law. comprehensive pro bucks would have been prevented faithful jews and catholics from acting as their religion required. but as we've already heard, when a parallel issue came before the supreme court in 1990, justice antonin scalia, a famously staunch catholic, offered a majority opinion holding that the ceremonial use in native american religious rights warranted -- did not warrant exemption from drug laws of general application.

at the heart of his opinion was the concern that such accommodation creates a system in which "each conscience is a law unto itself." the legislature may, if it chooses, write specific accommodations into the 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 act, neither catholics nor jews would have had a valid first amendment claim against it. i've 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 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 testified to the unresolved debate over the limits of conscience-based claims against broad legislation. this brings me back to the bishop statement, which goes well beyond pope benedict in a key respect. while the pope focuses on claims of conscience, the bishops emphasize the distinction between conscientious objection and an unjust law, "conscientious objection presents some relief to those who object to a just law." an unjust law is no law at all, it cannot be obeyed. the bishops insist if we face today the prospect of unjust laws, then catholics in america must have the courage not to obey them. 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 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 this 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 imposes unacceptable burdens on the poor and violates core principles of social justice 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 that if law is unjust, we must disobey it. it's easy to accept a less-demanding formulation, if the law is unjust we may disobey it because we have a moral warrant to do so, but there is -- i need not remind you -- a huge gap between may and must. the principle that we're forbidden to participate in evil 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 casualty 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 alza attach conditions, some of which may be, indeed, i suspect are bound to be at odds with particular faith. there's room for argument about the legitimacy of specific requirements, and some legal scholars have developed a theory of unconstitutional conditions. acts that government may not require. the church could say that various legislations reached this limit, but the bishops do

their case no favor by framing the government's requirement as a straight forward violation of religious liberty. it's one thing, cooperation with the state is another. here of the things to consider. first, when the church receives money, it does 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, encouraged the widest possible participation. that is caesar's decision t. 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 prospective 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. when the supreme court handed down its decision in the bob jones case. federal law has allowed the internal revenue system to withdraw taxes and status from any institution found to be practicing racial discrimination. in its majority decision signed by eight justices, the court ruled 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 established public policy, that serve the public interest, and that are not grossly ad odds with what the

eight-member majority called 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 than not 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 descending 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 goodwill on both sides are essential.

these are scarce virtues in our divided times. i conclude with a probably for lorne plea for another scarce virtue, a virtue essential to public as well as private life, namely a sense of proportion. yes, the obama administration, in my view, got it wrong with its foray into the affordable care account, but unprecedented threats? what about the mormon church, which the federal government of the united states mercilessly hounded for decades, finally into utter legal ex-tings? what about efforts to outlaw 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 rithra. i agree with that. i think it is. i suspect that federal courts will so rule. this is hardly the first clash between religious organizations and the ram fewed 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.

>> thank you for the remarks. it's a conversation about religious liberty. most of the people present and on the panel are believers, though it may behoove us to cultivate an lifestyle at this point. i know you're thinking of caffeine or the restroom and maybe 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, i believe, have appointments for lunchtime, so we are going to end on time. but i do propose to deny our panel to have at each other. so i propose to skip the 15 minutes or so that i was thinking of for a conversation

for the conversation across the podium. and i have a few remarks to make which are joined by the conversation to this minute, and then we'll go to q&a from the audience. but one of the benefits of going last in a line of distinguished speakers is that whatever prepared remarks i had, and i did have some, which may be put in this record, but my thoughts have been enriched by the conversations made. it seems to me it might be most helpful if i could add the following perspective, one which i think has been referred to in the course of the conversation so far, but not really developed. let's step back and take the nature of the threat of this liberty at hand. bill spoke about the bishop's claim that there's an unprecedented threat or

intrusion to religious liberty at hand. i think that's true. as i said earlier, unprecedented itself is kind of a limp word. the real question is in what way or ways is the threat today different, and more serious than other threats. let me take a look at that for the following reason that because either of the following -- any one of the following three events will make conversation dispute about precisely the h.h.s. mandate moot. one of those events is going to take place no later than june 29, when the supreme court resolves the lawsuit about obamacare in general. if it should be determined by the court that obama care as such is inseverable from the individual mandate, not the h.h.s. mandate, but that all of obamacare would be invalidated. with that, the h.h.s. mandate, because it stays on the authority of obamacare.

the first tuesday in november, if there is a president romney at this time next year, there will be no more h.h.s. mandate. or failing those two possibilities for repeal, if you will, the lawsuit presently on file will eventually be in the supreme court, and i agree with bill galston. i think the mandate stands in peril of being invalidated by the law. i think that's a very strong possibility. my own judgment is the lawyers who convince the court that the mandate narrow exemption is the least restrictive means of achieving the administration's goal, assuming that the goal is a compelling state entrance, the goal being namely -- and i'll read the words of president obama of february 10. this seems to be the heart of the aim of the mandate. every woman should be in control of the decisions that

affect her own health. now, whatever you think of goal, it seems to be the goal, and even assuming a court deems it compelling, it still seems to me in light of what was said earlier by a couple of speakers about the seeming casualness of the adoption of the mandate by secretary sebelius and her advisors. they seem to have no studies about comparative effectiveness of other means to achieving the goal, ensuring every woman is in charge of her health. my own judgment is they will contest the mandate cases on a different ground. i think the administration's best hope -- i hope they're not listening and take my advice here -- i think the best hope is to say that it is not a substantial burden, that the administration has backed off enough so it's not making the churches or the institutions pay for or more literally provide the contraception, so

therefore, but even i think 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 the one about the speaker of underlying forces, but actually underlying choices, convictions, aims or purposes. there's a word orthodoxy talking about the ideological viewpoint of his sector of the medical profession. i think he used the term cap stone of trend. that's what i'm talking about. the mandate didn't drop from the heavens, and despite the fact that secretary sebelius seems to be lack case daal about the mandate, it wasn't as if she was sleepwalking or on auto pilot, i think that indifference is a product of the fact that mandate is aimed, and the narrow exemption were easy calls for her, that given

the body of commitment that she holds, it wasn't hard to see that the mandate should be what it is and the exemption should be what it is. i won't pursue this further, so i want to make two points about what's new in the administration's view, other view of religious liberty, but let me just put aside further development of this emerging orthodoxy about what could be called sexual equality or sexual freedom, sexual something. it would include contraception, abortion, same-sex marriage. this is an emerging, if not emerge incident orthodoxy source, which many people would have occupy almost fully the public square. but i'm not going to say more about that. bill is quite right that if unprecedented is heard to mean just the biggest or the largest of magnitude in some very flat-footed way, he's quite

right. this is not the worst that's ever happened. i think it's bigger than some of his examples of possibly working, because this is a federal mandate, unlike the oregon law that would have put catholic schools out of business in the 1920's or making gentleman hove a's witnesses kids raise their flag. those are state actions. as bad as they were, they weren't sweeping national norms and requirements. bill mentions one, and i'll mention another. i think that on some basic measure of magnitude, the mandate is not a competitor for the worst title. in the late 19th century, the federal government sprawling campaign vis-a-vis the american indians. i won't go into details, but no

doubt the government's campaign of the american indians were larger and more appointed attempts to get a religion. they're different in important ways. again, they're worse, but they're different. the attack upon religion was actually a smart part of a wider campaign by the government, in the one case against mormon theocracy, or against zion if you're on the inside. but the government was trying to establish but they were trying to exercise control over members and were attacking zion . they view that religious social life was one unit. you might even say the government was trying to introduce separation of church and state. the kind of belief that they

inhabit all sorts of things, and again, the government had no good to say about that, but its campaign was really about tribal social order as an impediment of the indians' integration into life. it's a fact, it was pro religion for the government, the idea was that to americanize, assimilate christianizing idea was all the same. so they're different. there are big campaigns to assimilate a body of people totally. 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 it is uncharacteristic,

unusual, anomalous, maybe not unprecedented, for this kind of thing to happen now. but here, let me point more or less quickly to two things that are happening with our understanding of religious liberty. again, 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 and like efforts by the administration reflect i think the following two judgments. one, that the stance on -- or defense about these emerging orthodoxy about sexual fulfillment, it's not anti-contraception or anti-same six major, or about the idea when people began, which is at fertilization, to identify depends on those questions with religion. that if 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. kind of marginalization of a certain set of viewpoints, which may be wide spread, to religion. the second of the two steps in that move is that religion, again, thinking that people begin at fertilization, these views are then branded as the product of either a kind of mindless bias or prejudice or religion. religion being a species of bias. now, i submit to you, and i won't have a chance to prove it, therefore, i won't fend off all of your counterclaims by saying i didn't really get into that, but i think what's happening is that a body of people with certain moral views about controversial issues like abortion, same-sex marriage and contraception, are being called by outsiders, that's your

religion, whether you know it or not, or whether you like to admit it or not, and your religion, your doctrine, they're not reasonable. now, you hold them, and in some limited sense they might be true, but they're beyond rational defense. they're rationally indefensible. they're like biases. they don't have any traction on the public sphere. so, religion is being squished into this space reserved for the beyond the rational. because that's one thing. perhaps naturally it follows that the view i'm describing, which is a view behind the mandate and a narrow exemption 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, whether it's adoption services, alcohol anonymous, you name it, what's their value to the community, the wider community? it would look to me -- it looks to me like kathleen sebelius and others that that value is limited. it's small and defensible. here's where i would remark upon the apparent casualness with which the administration adopted -- not the mandate as such, but the exemption, the very, very narrow exemption, 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, etc., have value to the people who are operating them, religious value, because it adds a kind of religious motivation for

them. it has a kind of religious satisfaction for them. so far, so good you might say from the view of the public square, but that's just private. now, from the public square, it seems to me that 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 -- kids in the grade schools, then so much the better. but that's pretty much it. the basic picture of these organizations that i think is at work among many people, would be behind the mandates, is pretty much this -- religion has value in these places privately. public is identified with secular service delivery. well, from the public sense, the strictly religious nature of these institutions, the religious component as such is

invisible. i think that's back to what's happening. i think that's deeply mistaken. a highly secularized evaluation of these ministries. i think that's unprecedented. we could say a lot more about the campaigns against l.d.s. in the 19th century, the american indians, against america's jews and america's catholics, a recuring mo tough is the mainstream, and mow more secularized, putting it to the catholics, especially to grade schools. there's a lot more to be said -- and for now, i proceeds let's leave aside where the one is worse than the other, because they're all different. this way is unprecedented, this way of viewing ministry, the evaluation of them from the point of view of the politics is at work, and i don't think i've ever seen it any other

time in american history. with that, with the time left, please, i urge you, especially because of limited time, say what you wish, comments, questions, criticism, better jokes than i've told, but please do so in less than 60 seconds or less so we can get more people to the microphone. there are microphones on either side of the room about 1/3 of the way back from where i stand. but again, the lack hit is simply to get more people a chance to speak. yes? >> thank you. i'm a legislator in arizona, debbie, and 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 is 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. i think one of the takeways in this conference we hope is the beginning of the network and resource banks that you're describing. for that, there are details. >> fantastic. >> i'm a state senator from colorado. i want to thank you for your 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 tended

to speak about the case where the solicitor general came before the courts and made the argument that religious institutions did not have the protections to pick their own leadership, and you said that 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? 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. 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 decision was extreme and remarkable. you know, i'm not sure what pushed them into that position, although i would say that it's fairly consistent with their position in the h.h.s. mandate. when you look at how they drew the test, you know, their second line of attack was basically, even if there is an exception, it should be limited only to those employees who perform exclusively religious functions. well, in the actual opinion that came out from the court, on which all of the justices agree, it actually said, we can think of no such employees, they don't exist. and so you've written a test, an exclusive test to determine

what religious employees should be protected 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 h.h.s. mandate case where they have drawn the exemption so narrowly that it does little better. you know, it covers some, but it covers such a vastly narrow group of religious organizations, that it effectively denies religious liberty to a much, much larger group that has 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. >> i spoke about the theme with

my remarks. i have good news and bad news for you. the good news is that this particular case was brought, it was started under the federal equal employment commission. they're an independent agency in the federal government. the initial decision about the eeoc stepping in on behalf of that teacher and taking the case were made in a regional office out in the country. i'm fairly confident it was without a grand strategy by somebody back in washington. i know that from my involvement in the discussion. so there wasn't a grand strategy in that regard, but consistent with what hannah said, once it got to the top, once it got to the place where, ok, the eeoc is coming into the supreme court, and when they come, they're represented by the justice department, the 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 mindset of the administration, that's where it kicked in, and the extreme position was put forward, and from my point of view, was repudiated by the full court. >> i think it was not -- it was not a grand strategy as much as it was -- it was reveler to of their mindset. this administration, you compare this administration with the clinton administration, for instance, and it's far mormon owe lith i can -- far more monolithic than the previous administration. give you an example, one of mr. obama's appointments to the eeoc is ky feldman, 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. must give way to the rights of gay, lesbian, bisexual, and transgendered people. i would say that's a mindset out of sync with where the general public is and is one that is inherently hoss tim to religion -- that is inherently hostile to religion. 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. i'd like to say that missouri filed the first piece of legislation to try and block that lawsuit against president obama's healthcare bill, and we're also right now on our primary ballot this next few months. we'll be hearing legislation trying to bring prayer back to our public schools. so a couple of great things. my question is, my wife and i

went to a graduation, the harry s. truman high school in independence, missouri, and it was held at the auditorium in independence, and that is the church of latter day saints. 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 they were going to end up that same commencement that day with a moment of reflection, also no prayer, but they just skipped that completely. >> partly that curious arrangement of activities reflects a perception of what the law permits. it may have been the desire of some people present to have a

prayer, nondenominational prayer, but people thought that that would be held inhave a i had by a court. 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, missouri -- just off the topic -- doesn't have a contraception mandate, but has a very 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. >> ok. yes, sir? >> i'm from patrick henry college and the international journal for religious freedom. it strikes me that two features are running through all of this. two features we seem to be avoiding, which do really make them unprecedented to other controversies over religious freedom in american history, the first is they're almost all

sexual. they almost all involve a new kind of sexual radicalism, which is seen 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 most of the threat to religious freedom, want only here, but elsewhere in the world. second feature, which maybe is not so obvious, is many of these threats are indicationed by the increasing scope of government over private lives. that's helped most obvious in the case of healthcare mandate, but you could make the same case about marriage, that 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?

>> let me focus on your second point. very briefly. i think you're right. the question is, 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 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.

this really just continues the theme of my opening remarks, that it is not up 10 fact toe 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 from government to retreat. >> anybody else on this question? >> yeah, i think that one of the most dangerous trends to our freedom is the withering of civil society. where government goes in, civil society tends 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, or catholic adoption agencies to be forced to pull out of a state because they won't place children with same-sex couples. that's what they had to do in massachusetts. there are some who believe the government wants to wither these civil societies and mediate 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'd have a little more redress of grievance. when it comes to sexual radicalism, i don't think there's any question that that's a huge issue and one where, when it comes to sexual

politics, it's almost uniquely intolerant of my view. i think we need to appreciate and nuture mediating institutions in civil society between individuals and the government, not wither them. >> i agree with your second point, but 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 said 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, but i just want to clarify and make very clear here that the federal h.h.s. mandate has nothing to do with federal funding whatsoever. the h.h.s. mandate applies to

every employer, regardless of whether or not they receive federal funding. so, even if you are a 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 h.h.s. mandate is completely a red herring. >> i would remind you that i distinguish two cases, one of which involved funds and the other did not. i included the funding argument forsake of descriptive completeness without arguing that that was the appropriate frame to evaluate the h.h.s. mandate. i was quite careful to do that. >> well, thank you, finally, once again, all the participants, especially the speakers, ale of you in the attendance. yours is the last question. >> oh, thank you. >> well, thank you too in particular. it's a good number to close on. but we do have to retire for lunch. >> could i ask my question? >> very quickly. >> my question is, religious

liberty as applied to particular cases, because it helps me understand the dynamic. i really appreciate the discussion this morning. if there were -- if a woman had 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 chose not to rebt to -- not to rent to them, where would the law stand on that? and thirdly -- >> just the two. we're hungry. >> the other one is, what if it were the marriott corporation and it was mr. marriott's belief that he dent believe in homosexuals sharing a couple?

is it size? how do you figure it out? >> basically, it does depend on what the law is. just so far described, one, two and three, the constitution, the national framework of basic law would be pretty far in the background. the question is whether local or state laws that makes specific prescriptions about places of public accommodation, what's the definition of a public accommodation, does it exclude mrs. murphy's boardinghouse, for example, and it probably will, the h.h.s. mandate applies to basicaccl all employees, but that's not in the constitution, but in the statute. perhaps the short answer, which is all i have time for now, is that it varies depending upon exactly what the local law says. now, i'm sorry, go ahead. >> those were precisely the kinds of issues that made the coalition that i described fracture when we were trying to replace the religious freedom restoration act with a

subsequent statute. and what was interesting, just to report to you in that dynamic, is that, again, you had liberal organizations who are in the coalition who are on record, were on record then or still on record today being on the progressive end on women's rights issues and gay rights issues and so on and so forth. they all wanted -- they all, by and large, wanted a broad statute, a broad standard still put in place, on the notion, sort of tying into what bill was talking about earlier, on the notion that you 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 where you can serve that compelling interest, and so probably more often than not, the people who would be subject to that discrimination will actually win the day, and religious liberty, so to speak,

would have to give way on 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 into law, and then we should take it case by case. unfortunately, from my point of view, it was the view of other proponents of those individualized, full, civil rights agendas, that felt like we don't 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. that is, unfortunately, the chasm that now exists between religious liberty advocates and civil rights or other principles advocates in this arena. >> well, you probably are wondering and been wondering, why are you tables and not chairs? you're going to eat in here, or at least you're invited to. lunch is outside. you're invited to grab what you wish and come back in here to eat. we are going to resume our

conversation at 12:30, or soon thereafter as we can, so please, bon appetit, and thank you, if you will, to our speakers. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012] >> next, live, your calls and comments on "washington journal." then "news makers" with

representatives with aerman shultz. after that, a discussion about the 2012 presidential campaign. >> i want people to get from the book is a better understanding of who she was, what she was like in that four-year period, because there have been a lot of books written, and most of it is written by people who talked to friends of friends of friends. they really don't have the information themselves. i happened to be there. i knew her. >> from late 196 owe through 1964, former secret service agent clint hill served on the protective detail to first lady jacqueline kennedy. >> there's no gossip, no salacious information. it's just what happened, what she liked, things she liked to do, how humorous she was at times, how athletic she was at times, and how intelligent she was. and how kind of rambunctious she was. she tried to put me to the test many, many times, and i did my best to meet that. >> more with clint hill tonight at 8:00 on c-span's