the theme is accommodation and i hope everyone of goodwell is impressed by the liberality with which allen speaks. i want to come back to oz for a second. oz in one of his books is expressing concern that globally the universal declaration of human rights would no longer be accepted. including but not limited to article 18 which is -- it is a declaration but there are

international lawyers that know it does have the force of law, but it was a declaration like your declaration of independence. universal declaration of human rights couldn't be agreed to anymore globally. but at least in america we i think overwhelmingly would say we agree. >> i agree. >> with the sentiments of the universal. do you agree with that? >> i agree with that. the universal declaration grew out of the second world war, largely out of the holocaust written by a jewish frenchman and it was an amazing accomplishment for which he got the nobel peace prize. there are efforts afoot to try to undo it and to try to undo freedom of speech, free done of religion. -- freedom of religion. there are attempts to try to essentially put blasphemy laws back into universal exceptions to free speech and i think the united states government hasn't

taken a strong enough view against that kind of international encroachment on our particular concept of liberty. many people think it is too american that we are trying to impose our view on others. this is an area where we are right and they are wrong and we should simply not compromise on those views. [applause] >> this is gris for the daily mill and one of the reasons that we had baylor university feel so drawn to come alongside and to support what the bar it is clays center religious freedom project, under tom and their wonderful colleagues are doing in order to have a conversation with public policy makers. individuals in captivity, been in prison.

can you imagine being imprisoned because of what you believe and because of what you are saying to someone? that you can then be imprisoned in the 21st century. as tom said at the outset that is the trajectory according to the pugh forum. it is one of the reasons the conversation with respect to doing that with congressman flores, the congress in 1993 said let's do something about, it let's have a restoration. that is a great word. a restoration of the culture of religious freedom. as we open this up to the audience, let me remind us all of a quote by william o. douglas. he may not have been what shall i say? he was a secular person by reputation. judge not that you be not judged but a great friend of freedom whether you agreed with him or not, he was a great friend of freedom and wrote in one of his opinions for the court just speak for hillself, speaking of -- himself, speaking of america

we are a religious people whose institutions presuppose a supreme being. when you return to the declaration, when you return to those founding principles and the founding what i think the founding generation was really lifting up for all of us were the blessings of liberty for ourselves and our pos tarity. join me in saying thank you to alan dershowitz. [applause] and now we hear from the audience. >> that's right. and let me just confirm for the record that both of our guests have, in other words, said that the united states ought to have a firm international religious freedom policy.

and i'm delighted to have you both on the record on that. i have written for some time that we are not doing the kind of job that we should be doing and so i'm delighted to have you end your conversation or at least your pen ultimate discussion was about that. thank you for bringing that up. i will read some questions here. those that like a physician doing prescriptions i'm sure they were brilliant questions but i couldn't read them. [laughter] we had a little bit of cross eyed conversation over there. we do have some that we can read so i'm delighted to present this. this first one for professor dershowitz. he says and, of course, judge we would like your response too. the government believes greater access to birth control will reduce births and hobby lobby

already covers childbirth in its insurance plans which is far more expensive than birth control. so, he says, isn't hobby lobby already offering to pay for being accommodated? >> that is a very interesting perspective. in the brief -- in the other case they actually assert the position that there is no relationship between providing contraception and the actual birth rate. that was for me very questionable. they provide some empirical data that purports to support that and say the burden is on the government. it raises a much more profund question and that is does the government have a right to take a policy position in any way on whether more or fewer births should be encouraged in a society?

i would be very uncomfortable with that. in china obviously that position has been taken in countries with mixed racial backgrounds, there have been efforts to try to reduce, you know, people by the way praise margaret sanger. if you go back and look at is history, her goal in introducing birth control was to reduce the number of children born to undesirables in the country. it was really not a neutral method of reducing population size. i think the government has to stay out of that area. i think the government has to realty be very careful about never telling families whether it is a good thing or a bad thing to have more children tore fewer children. and anything that gets into that business, even in terms of suggestion, even a bully pullpit treads on too dangerous ground. clocks as a matter of rudiments

prudencea matter of government would not say we want , you to have more children, especially given the dysfunctionallity that attends so much of social and cultural life now. but i do have a different view which is while respecting conscience, the government can in fact be if it so chooses to be prolife. we want the more the merrier. >> could it also then be prochoice? >> well, of course. the government can be prochoice. as long as freedom of conscience. i mean to me that is the democratic conversation. >> why should the government take any position on that? why shouldn't that just be left to individual conscience and the government remain agnostic on the issue of choice, of life. aren't those the kinds of issues the government best stays out of it.

>> a perfectly reasonable view. government can if it so chooses say we think the better society and the good society is a society with large families. we think that is better. >> then it can say the opposite. then it can say -- but i don't think it is a good thing for the government to be saying we think you should limit your children to one. that a birth ratio -- of one. >> absolutely, no. >> that would be a bad thing. >> how can you accept one and not the other? >> easy. >> not too easy for me. >> it is, first of all, it is the degree of interference and that is a judgment call. but i'm also talking about the coercive powers of the state which i would say any kind of coercion would be really wrong. we do in fact encourage larger families in terms of saying we are not going to cut you off in terms of the child deduction after child number one or two. in other own way we recognize and some economists would say you are incentivizing large families.

i would say, that is very theoretical rather than real because you are not going to recover the costs. [laughter] can government have the right to cut off the deduction after the third child and my own view is i think that would raise profound issues. >> i completely agree with you. i don't think it would be good for the government to announce a specific policy in favor either of larger or smaller families. i very much worry what happened in france. in france after the war, the government took position i'm told that we should reduce the number of children. and if you want to be a good citizen, you should have no more than two and preferrabley one child. i just don't want my government to get into the bedroom with me. >> and i agree. i don't want the government to do that. i think you were saying right of the government to do it. i'm saying my views on democratic theories if that is the view of the government that is why we have elections then the government has the right to articulate that and then we have an election. i think it is better for the government to do that which the government does not do.

it doesn't go out and say please reduce the size of your families or whatever. i think the government would do well and i think presidents do this by example, by word and by deed saying fathers, why don't you care about your children? fathers, why are you leaving the home? >> i agree with that. i'm told now that in russia this great democratic leader putin has looked around and seen that russian population has gone down dramatically in the last several decades. they have a relatively small population. i think one of the lowest populations per size of the country of any country in the world. and they -- not quite as low as iceland, but they are trying to increase their population. and it makes me a little nervous when i hear about government doing too many things in that area. >> could i just follow on before i read another one. you both say that you believe government should encourage fathers not leave their

families. would you support getting rid of the no-fault divorce laws? >> that is very interesting. alan take it away. [laughter] >> i have a view. >> i will go first. >> i don't think the problem is divorce. i think the problem is not getting married in the first place. i think the problem of fathers, of sperm donors who are not fathers, who are just providers of an essential component of biologically having a child have to take par greater responsibility for their children. as a man who went through a divorce and had custody of my two children, i didn't see any inconsistency between having a divorce and being a very, very good hands-on father. i think a good divorce is better than a bad marriage often. and it can be consistent as well with a good parental care.

so i wouldn't again get the state into the business of opting for bad -- the preservation, i don't want to see the congress pass the preservation of bad marriage act. [laughter] abolishing divorce. >> some view that no-fault divorce are laws that are designed to destroy good marriages. >> i think divorce -- the purpose of divorce is permitting you to remarry. that is the purpose of divorce which is why i helped draft the antiget law in new york. under very orthodox jewish law a man can hold his wife who he is divorcing hostage and not let her remarry by refusing to give her religious divorce. i drafted a statue in which i made one of the major functions of divorce is to permit remarriage and if there are any effective barriers to remarriage the court has the right to inquire into those as a

condition of granting the man his divorce. it is complicate and i admit i haven't thought the whole thing through. my instinct is not to have the state put its heavy thumb on keeping couples together whose strong belief is not to live together. >> tom's question went to no fault and that is a very modern phenomena of the 1960's and 1970's. i think social science does show that children as a rule do better in a family. >> yes. >> as well as one of the consequences of at least the guy leaving the marriage is that it tends to impoverish the spouse. >> we should do something about all of that. >> typically has the children. >> we should do all of that, but i think in most divorces no one is at fault.

the divorce is simply a function of a mistake that was made or growing apart. the idea of having to point a finger at a spouse and accuse them. when we had fault divorces in new york, people would make up fault and acknowledge adultery when it didn't occur. going back to fault divorces would be a serious his take. >> i'm sorry i asked. [laughter] >> let's move to a more controversial issue. >> you know what they say about a lawyer. never ask a question unless you know the answer. [laughter] >> sorry. >> i would like to now this question was not signed which is a no-no but i will ask it anyway. it has to do with racial discrimination. the reference is to a case that i'm not familiar with but i'm sure you will be. the heart of atlanta motel case. if the defense for the racial discrimination was based on religious grounds with the hobby lobby position support the hotel

discrimination or with rfra support racial discrimination on religious grounds? >> no, but even there there would be a question, does the government have a compelling interest to override and we are going to assume it is a sincere religious belief, all right. that may be an exit ramp right there. really you have a sincere religious objection to sebing people of all races, if you establish that and courts tend to be very generous with respect to accepting claims of sincerity. the question becomes does the government have a compelling interest in stepping in and saying you can't do that? of course, it does. we had a civil war. we had the 13th and 14th and 15th amendments to the united states constitution that shows the role of discrimination when it comes to race.

it tore the country apart. and government clearly in my view has a compelling interest in eradicating discrimination. >> let mow throw a hard question at you. >> i like it when he answers the question. >> i belong to a wonderful synagogue in new york called park east. i love the rabbi. it is an orthodox congregation and the women sit separately from the men and my wife who was brought up in a reformed congregation in charleston, south carolina, doesn't like it. she says she is being discriminated against and their response is no, no, no, separate but equal. of course, that was what the whole civil rights movement was opposed to. separate but equal. i can't imagine any court compelling a synagogue to require women and men to sit together. that is a core aspect of orthodox judaism they would clearly allow that to be maintained.

>> and the court has been clear saying we really want to understand the context. the context is critical. and so there what you are talking about is this deeply held religious belief of a community that is voluntarily come together. >> of course. >> whereas in the hypothetical the heart of atlanta motel what the owner or keeper was trying to say is we do not want to serve african americans. we want to be in the freedom of american commerce, but we do not want and that includes interstate commerce obviously, not that we just want local people here. a bed and breakfast designed just for these people, a slightly tougher case, but not really. when you look at the nature of our economy, it is quite i think defensible for congress to step in and to regulate using its powers under article i of the constitution section 8 to regulate commerce and do so in a

sweeping way by the way, that was one of the issues in the affordable care act and you saw how deeply divided the court was. five members of the court said congress exceeded its powers under the commerce clause. what we are talking about is the constitutionality of the great title vii, talking about the great 196 this civil rights act in title vii in employment relationships and then the public accommodations provisions of the 1964 civil rights act. overwhelmingly, in unanimously upheld. >> let's assume that the green family loses and they do something that they would never do. it is a hypothetical say we have to not provide this care so we will require all employees, the 13,000 people who work for us to commit themselves to not using these four methods of birth

control and we will not hire anybody who is not prepared to commit themselves. and in that way we eliminate any religious problem of do you think the court would uphold that? >> i think so. i need to think that one through. i think it is okay because of again the baseline is liberty. that is their employment so is there any kind of discrimination. on a ground that congress has seen fit to forbid. >> religious discrimination. it would be religious, wouldn't it? >> i'm not sure. you are saying that this is a foundational part of our policy that yes is informed by religious belief. >> but what if you had potential employees who work for them who say it is our religious obligation we think to limit our family and to use this kind of

birth control then you would have a kind of conflict. >> well, they have i think said they wouldn't do that. so i don't want to put any onus on them. i don't think the case is going to come out that way. >> it is a harder question if they lose. but the other thing i think that we should lift up because you are talking beyond this particular case. remember that so many businesses in america so many a totally different point, some businesses in america are small businesses but a small business may have more than 50 employees that will be covered by the a.c.a., the affordable care act. one of the issues for the congress of the united states is really if this is that important the affordable care act is that important we want to exempt millions of employees from this wonderful coverage that is being provided? 50, not five, my dear friends. but 50. if you have 50 employees that is a fairly significant business.

>> why doesn't congress solve this problem? >> i'm sorry, congressman flores. >> simply say today when you get back to work this afternoon, congress could probably pass unanimously a resolution saying s corporations are people for purposes of the religious restoration act. problem solved. >> that someone of the odd things that in -- that is one of the odd things. >> if you win. >> if hobby lobby loses it is a setback obviously i think hugely so for religious liberty. but it is really the lawyers relief act because this is what is in they are right. what is the nature of my partnership. can i have a limited liability partnership and the like. it would be a great day for the corporate lawyers. but you can in fact manage around it. i'm not saying it is easy to take a corporation of the size of hobby lobby and say we are dissolving the articles of the dissolution and the like but it can be done.

>> excuse me, corporations can dissolve. it is partly audit of the entire -- oddity of the entire government on the part of the government that because it is a for-profit corporation. think of this. if they had remain as five partners in the family they have full protection. so at what moment did the magic occur? you had religious liberty rights and now you don't? >> your accountant took it away from you. [laughter] >> and it is just -- it is an exercise, the exercise and formalism which is the kind of exercise that you give lawyers a bad name. >> last question, what will happen tomorrow? [laughter] an insight into what you think the reasoning will be? >> you are our guest.

>> i will be there and listening to every word of the argument if it promises to be an interesting argument i'm a we will not know how justice thomas is thinking because it would not let us in on his views. will we hear a lot from some of the other justices. tomorrow by noon, i will be in a better position to make a prediction than i am now. if i had to guess, i would say the court would not accept the corporate individual distinction. and it is hard to know, i think they will accept the analysis that has been put forward by the private parties rather than the government. in the end, how they will find there is a compelling need, i just do not to know. >> i think the prospects are bright for hobby lobby and demo for the government and they tend not to make predictions but you

asked me to. i agree totally with allen that the argument with respect to hobby lobby and the five members lost their rights and filed articles with the corporations. it borders in my judgment on the frivolous. i do not see it. are humans do not view as serious have won before. -- arguments that i don't view as serious have one before -- won before. i would be surprised. the second thing is the religious freedom act is so powerful. let me give you one very quick example. congress that we are series of our religious freedoms so we -- serious about our religious freedoms so we will apply it to inmates in prison. it is essentially applied to institutions, state prisons for stop -- a state prisons.

all kinds of arguments were made by the state of ohio and michigan and state attorneys generals sat in is terrible. prisoners make frivolous claims and we can -- prisoners make frivolous claims and we cannot allow this. that is what congress have called on us to do and we have to balance it. if you look at the case at kutcher versus rokerson, what chief justice roberts so wisely said. bureaucrats have said, we cannot grant an exception. if we grant you an exemption then we have to grant every body or an exemption and therefore no exemptions. that is what congress -- when congress stepped in and says absolutely not. when you look at the record and you see ohio said, we cannot provide the appropriate kind of food for muslims.

and then you are providing kosher food for jewish inmates. when you started drilling into it, government policy is not quite as coherent. >> can i end our state and anecdote? about 25 years ago i was representing a guy who was a union guy. i later learned he may have had connections with unsavory groups. i do not generally represent people who are criminals. [laughter] but justice prevailed and he lost. and he was in a prison. one day he called me. he said, hi, alan, i became a jew. i say you are a religious catholic. he said every friday i am a jew. he said they kicked me off friday night and it was in prison and a give me the soup with be matzo balls and chicken.

and today take me to this place and there is wine you can drink. and on sunday i become a catholic again. i said michael, what you are doing, you cannot do that. he said everybody understands that. that is how you have to live in prison. [laughter] he became a jew on friday and saturday. these religious claims in prison are abused. no question. people grow along the beards to hide weapons. nonetheless, the court said even in the face if we know there will be abuses, religious liberty is so much more important they use a prison authority have to figure out a way of getting to these scamsters and figure out a way but not -- but do not interfere with the religious rights. [applause] >> let's ended on that right

there. thank you. >> more from the forum on sebelius versus hobby lobby. this is an hour and a half. >> good afternoon. i am michael kessler. i teach in the department of government and law school. i would first like to think tom and tim and the leadership team of religious freedom project for putting on yet another stellar event. and thank our partners of the

religious freedom project at baylor university, president starr and byron johnson and the team who are excitedly going to be joining us for this inquiry adventure over the few years. greetings to you in the audience. our discussion here today as part of a wider conversation about important issues of health care needs and costs and individual liberties, contested goods, and the way to balance these pursuits with cherished protection of equality under law and religious freedom. the berkeley center has held previous discussions about the regulation implemented by the department of health and human services under the affordable care act and the claim is that they create violations of religious freedoms.

questions about how religious communities and not-for-profit institutions such as universities and social service agency are impacted by the law. those events are on our website and rich with information. i submit that you would be well served to check them out. our focus is on the claims by some that for-profit corporations are impacted by the aca's contraception a mandate that it violates the religious freedom of corporations and their owners. these are complex questions and with all respect due to president starr, this panel will dig into the boring legal questions he touched on very eloquently and wanted to push past. that is the charge to the committee assembled in front of you.

i suspect there would not be consensus amongst the panel or the room about how the case should be decided but i submit it is a worthy goal unto itself and most crucial for our democratic order that we come to a better understanding of all of these issues and understanding of how each of us come to the table finding them to be vitally important. i also think it is safe to assume if you are here today, you're familiar with some of the debates. here are a few quick facts. an interim final rule as an implementation of the affordable care act that indicated they would require most plans to cover preventative services for women including contraceptive services without any co-pay or coinsurance or deductible.

the role of the rise the health resurfaces ministership to exempt certain religious employers and defined it narrowly. the debate are over who got an exemption and who did not but got accommodation in who acted the end of the day did not get any accommodation. the debate while strenuous over the role of nonprofit was also strenuously debated over the role of for-profit corporations and businesses. over the story was objections of some for-profit employers like hobby lobby, the government did not implement any accommodation for religious objecting for-profit businesses. the respondents in the current case are on appeal in the supreme court as scheduled for oral argument tomorrow claimed the preventative services will substantially burdens their

exercise of religion under -- else was introduced and the previous -- and that was introduced in the previous panel. their claim is that aca requires them to offer their employees access to a medical insurance plan which must include coverage of aborted, certain kind of contraception that claim to terminate a pregnancy. in providing this coverage, the individual owners of the company claim are forced to provide among other things access to and pay for the use of abortion causing drugs and devices and this violates the religious beliefs by making them complicit in their employee's use. how do we assess this claim of burden?

other questions we will address include if the government has through the legislative process deemed it essential to cover the kind of services that they determined our important? how does it matter if some citizens including operations claim the services would violate their conscience and religious identities should they have to participate in the provision? how is the regulation like the hss mandate in violation of corporations as opposed to private individuals? how should the state respond to a substantial burden? does the current state of religious freedom law necessitates or merely allow for accommodations and if so, are they given only in the legislative process or is her judicial remedy? does rfra apply? if exemptions are granted, where

do they ended? a professor post a interesting question. can gender and race and other options be the basis for discrimination that are now to be provided at exemptions of by for-profit distances? -- businesses? my last question is to divide some background. it is not primarily a constitutional case about our nation's first freedom. judge starr did go for a few of these points but it is in a nutshell in order. starting around 1963, the court started to implement protections under the free exercise clause where persons with sincere religious objections to government laws had a first amendment right to an exemption unless the government interest subjected to so-called strict scrutiny was found to be the

least restrictive means and serving a compelling government interest. then came the infamous 1990 case employment division of oregon versus smith under justice scalia's opinion. if the law is mutual, not -- neutral, not directly discriminatory against religious believers as such, and generally applicable, it is valid and constitutionally and objectors do not get an exemption. justice scalia pointed to the legislative process as the available avenues for religious objectors to gain redress. building exemptions at the start and they will be the stronger after result of the political process, not enacted through judicial fiat. condemnation of this decision was swift and came from all

sides. it may be the last unanimous act of congress signed by a president in my memory which attempted to restore the statute the presumptive right to exemptions from applicable laws. rfra, government may substantially burden a hearse a person's exercise of religion if it is the least restrictive means. the court overturned rfra as it applied in the 1997 case. very fascinating case which i recommend you take a look at. for federal matters, it is still applies. and the implementation of the affordable care act is subject to the provisions of the religious freedom restoration act. up until these cases, none have

dealt with the question of how for-profit corporations might claim a substantial burden under rfra. our questions are clear. this is a legal panel that will deal with these legal issues. i will introduce our panelists who will make more clarity available to us about these complex issues. first is helen alvare, law at george mason university where she researches and writes about family law and the intersection of family law and religion. as a practicing lawyer, she drafted a speech in many leading supreme court cases on behalf of the general counsel for the u.s. conference of catholic bishops and later worked for the fcb's secretary for pro-life activities. she chaired a commission and the archdiocese and is an advisor to the 16th pontifical council and has served as a consultant.

kyle duncan, his work included representing hobby lobby and the green family. he is now in private practice pursuing these sorts of cases. previously, duncan served as louisiana solicitor general. he argued numerous appeals in state and federal courts including the u.s. supreme court. he was an assistant professor at the university of mississippi school of law where he taught courts on constitutional law and free speech. he was assistant solicitor general and the texas attorney general office from 1992. the eleanor davis professor of law emeritus at the george

washington university's law school and been on the faculty since 1990. his research focus is on constitutional law with an emphasis on the religious clauses of the first amendment. with his colleague, robert toddle, he is the author of annual reports. on the faith-based initiative of george w. bush and the author of many articles including the forthcoming book on secular government. j. schwartzman is a professor of law at university of virginia. his research focuses on issues of law and religion. prior to join the faculty at virginia, he clerked for a court of the united states of appeal for the fourth circuit. schwartzman went to virginia for his undergraduate and law degree

and received a rhodes scholar. before i ask the first question, or would you please make sure that all of your cell phones and other noisemaking devices are turned down so we do not disturb the flow of the conversation and others' attention? first question, i think was perfectly teed up by judge starr. and professor alan dershowitz. what is the substantial burden that is claimed? how do we codify that illegally? >> i will take it, michael. thank you for having me on this great panel.

you know, as michael indicated, i had the privilege of representing green family. i see them here today and i thank them for coming. you said this case is very complicated and it is in many ways. it brings a number of different issues none the least of the whole issue of corporate exercise of religion. however, on the other hand, this case is quite simple. you ask about substantial burden. as everybody knows, rfra, the civil rights statue, says that if government substantially burdens religious exercise, the government has to me to the highest standard to justify that burden. what triggers rfra is substantial burden. you asked what it gets. from our point of view, it is always been really easy.

if you force somebody to do something contrary to their face as say if you do not do it, we will find you or if we deny fine you, we will disrupt your business, by any definition known to constitutional law, that is a substantial burden. what we have already said it is very simple. the pressure the government puts on somebody to violated their faith. i have this brief here. i will read 10 or 12 pages from the brief. [laughter] no, i do not think i will do that. what we say it is pressure. the sherbet case. from the 1960's is said if you tell as you are jehovah's witness you can have a benefit provided you agree to work on saturday which happens to be your sabbath a gun unemployment benefit. --, you can have an unemployment benefit. it craves a lot of pressure to say maybe i have misinterpreted my religion and i should go to work on saturday. that is substantial pressure.

sherbet said if i tell you if you work on -- if and i worked on saturday, it is fine. substantial pressure. as with was that in our brief. this is what the government said in its brief. when i got it, i said, oh, good. this will be great. we can argue about it. and i quote "a proper burden may be deemed not substantial in cases where the nature of regime and expectations necessarily impose outer limits on when an individual can insist on modification of or heightened justification for governmental programs that may offend his beliefs." i do not understand what that means and none of you do. [laughter] i am sure the supreme court just do not understand. they threw out a bunch of principles and say it is not a substantial burden here because there is continuation between the owners and actual use of the contraceptive or if there are third parties involved.

there is no test. from our point of view, a very simple case. it is pressure. not a religious inquiry or ask about the theology of the green family or material cooperation, none of that. it is the pressure the government puts. it is very clear. do something that offends your beliefs or we fine you or disrupt your business. that seems to me to be very clear. >> you see the older folks here today will tell stories. alan and ken starr have stories about rfra i want to tell. before i get into the substantial burden piece. i will come back to that. the story of rfra is not nearly so simple as the way in which it was told and it unfolded and remarks this morning. the law of the free exercise

clause before the smith case in 1990 was not simple, straightforward, substantial burden, compelling interest was up -- interests. this is the oversimplified narrative. as in the smith case blew it. the religious freedom restoration act just put it back. restored it. if you paid attention to what the supreme court had dated before 90's victorian, -- 1963, you will see a line of cases and we will talk about some of the later about civil rights laws, social security, memo wage, over and over again. the religious liberty claims lost.

you will not see any rigorous application of this substantial burden, compelling interest test. when the smith case made the move into made, it changed something important. we are not disputing that. what happened in congress was a legislative coalition of folks which excluded right to life folks at first. some the folks were really on the side of the green family were not on the side of rfra in the first two years. but the folks who came together and said, a terrible thing has happened and we have to restore our religious freedom. we will put together a statute is a reason so simply and so clearly, rfra dusts that it is just a few sentences. what it did, it in a restore religious liberty as it was, it restored religious liberty to what many lawyers would say was the high water bar in the decisions before 1990.

the most vigorous active exist in the lobby for that. it did not disclose that to people and congress. the left and the right and they both agreed, it was all restoration. one of the reasons of the majority was so overwhelmingly in support of rfra because no member of congress wanted to be against religious freedom. it is easy to support. left and right said we are upholding the law. -- restoring the law. it does not commit you or being in favor of more religious freedom for prisoners. it does not commit you to anything except religious freedom in some abstract way. and we let the judges figure it out. will punt it back to the judges. so, the story was much more complex than it was told this morning. and the right to life people had to do the possibility that roe versus wade would get overruled.

some saying abortion laws comes back into play and some women may claim their religious freedom by saying it is appropriate or etc.. the archbishops did not want to rebate rate abortion choosing rights. they opposed the act. only when the supreme court in 1992 signaled it was not going to overrule roe versus wade, the coalition came together. that is just a story about how the law came to be. but the other very important piece for people to understand before we get back into the particulars, the difference between the statutory formula we are taught about, substantial burden. very two dimensional.

and the underlying religious liberty principles that the supreme court had developed over the course of a century which requited the opposite of flat which were 3-d and driven by particular narratives about business and prison and the military. a rich narrative in that law that just got flattened out. a lot of hobby lobby artiness are appropriate lawyer arguments -- arguments, quite appropriate warrior arguments -- lawyer arguments, are based on that last argument of compelling interest. let me say look a bit more about the substantial burden piece. i have had more than my share and i will stop. there are two parts to the question about what is a substantial burden on religious exercise. there is a question of what is the secular or legal cost of complying with your face, faith -- faith. there is the other side, what is

religious cost of complying with the law? if i comply with a lot, what is the religious significance of that? on the first one of those, kyl skimped past part of the story. the green family and others have had a choice. they could comply with the law and include the contraceptive coverage or they can make a $2000 per employee per year payment under their irs and to drop coverage. drop all coverage and all of their employees would be free to go and buy policies on the exchanges including getting subsidies and it would get the contraceptive coverage. is that pressure? it is a complicated kind of pressure.

we will fine you if you offer the wrong kind of assurance. and if there is a competitive labor market if you drop and other businesses might be able to compete for employees. that stores a little richer. under religious cost of complying with the law, this is where i think a lot of people have a commonsense intuition that buying an insurance policy that covers thousands of goods, only a few of which are objectionable which your employees may or may not ever choose to use. those put to the employer at the some considerable distance from the choice to use those guns. it is not like an ob/gyn doctor having to perform an abortion. hands-on, something that potentially involves human life. as a matter of commonsense intuition, there is a question about what is the religious cost of buying that insurance policy when you are that the disconnected?

but, the law tends to be a hobby lobby's side. the supreme court has said you cannot second-guess believers. even if other christians would disagree and some people do not get it, this way the greens read scriptures and how they understand and is not up to the course to second-guess on the meaning of religious questions. i think that is probably right. i will stop. >> does it by want to address that particular? we hear the claim that -- [indiscernible] from the actual delivery of the services that it seems this is absurd that the greens and others would object to this delivery. what is the best argument back to that, if in fact somebody would make the grains complicit? -- greens complicit? >> you want me to pick up or you?

the argument is pretty clear on this. we are talking about drugs and devices that kathleen sebelius testified before congress after an embryo has been formed. that is clear. it is also in the food and drug administration material on the instructions for the planned parenthood. it has a website about iud. ncies with it is clear about the disconnect. frankly, the consensus of whether we are taught about the case of emergency contraceptive. something that the scientific committee understood to destroy a new life. it is pretty clear.

they changed the rhetoric on pregnancy. it goes to the meat to be more convenient and it would upset people if we changed the definition. all that is to say it is clear the drugs and devices are after an embryo has formed. i like to go to the point of a very renowned feminist who said it is not fair to tell women there's a difference between these kind of shrugs and devices and others that acted before an embryo has been formed. it is a pretty big line. we also have the christian teaching, very classic, very well developed. the freedom act would have no problem finding this was a sincerely held religious conviction and held in the literature, high-end and scholarly literature. regarding what we call moral cooperation.

the government used the language of continuation. the theological problem is moral cooperation with specifically including the government through hhs is specifically naming these particular things. it's not just one thing among many others. the government is pushing so hard back on hundreds of places and dozens of places that have highlighted. a firm went along with this and making it even more clear. we are talking about a grave matter and what is called material cooperation. people who act in the corporation to tell of the third-party, this is for the religious institutions, i will not do what you do well for a family like the grains and others who are religious film running for-profit corporations, specifically making insurance

decisions. it is not even a question of whether it is theological literature. this constitutes a cooperation. so, i think that is pretty clear and the government really is not going to baby get past that. what can i add a couple of things? >> i agree with all of that, helen. the idea that somebody looks at that and say it is about complicity and this is continue waited. -- continuated. -- attenuated. it is not the governments business if the theology is a right. the government does not have any business. >> the courts have been very clear. >> it more attenuated than that. a certain kind of boundary that

will be used in vietnam that may kill someone in the jehovah's witnesses claim. weak ofse, that is too a point. what i would like to ask of the government is, if this is attenuated or a moral problem, why have you exempted all these religious employers? why have you gone out of your way if you are a religious employer a you employ religious people agree, we will not make you do this? i expect the government saying we are being nice or politically savvy or -- i do not know. it seems right to us to do that. and closely recognizing a moral problem. why are they accommodating are pretending to accommodate? if they do not recognize there's a real moral problem here.

the last thing i would say if you read the fine print, which i admit, is not summit i would recommend, if you do that, you see what the government says it is charging accomplish here. it's trying to pull specific drugs and policies. it wants them to be used more often and effectively. some those drugs or abortion, and does not use of the word abortion. if the government wants those drugs to be used more often and more effectively and wants to make the people like the green family cooperators in that. it does not seem to be far-fetched for somebody to say, i do not agree with your policy. i cannot stop you from doing it. but do not make me a part. >> let's moved to the question about there are so many exemptions.

ask the question now, it was interesting to hear judge starr say what you said -- was this burden question is an interesting issue here. in some ways, we are referring to the claim there is a substantial burden. what rfra does say if there is a burden, the government edges may be overwhelming enough. >> it is not be made on this panel yet. i do not think -- there are arguements i would start out defending. someone should make the argument as devils advocate. that's not an argument i would want to stand the case on, but somebody should air it. what the government is saying is being compelled to buy contraceptive coverage, it is a lot like paying wages to employees. your employees get to make

choices on how they used those benefits. health insurance is like parts of their general benefits package. to make a further claim, if you look at other aspects of religious clause, the first amendment, we have principles to guide us. if i for example as a taxpayer and i object to the way the government uses some of my money to fund religion in some way, promote religious speech or symbols, what the court says is you have the right to object. but if your tax money is being channeled through some third-party's decision and i have to pay for a voucher at some child or parent uses it for religious education and i object in conscious to the kind of

education they receive, i object because i don't like the school they are going to or something. or maybe i think it is teaching horrible things. religious hatred even. i can say i object to the way my money is being used. what the court has said is -- you do not have a claim. that is because that decision is being made by the parent. you do not do to make a decision. i say i have to pay for something that is -- it might cover what i do not like. even though somebody else gets to make the ultimate decision that we know somebody will make that judgment. that does not matter. you are being asked to pay for something. if you take that position from the establishment clause contacts or under rfra, it since i the same idea should hold. i think that is the nature of the substantial burden argument. you are too far down the line and the decision is too far

away. that is the way that argument gets worked out. >> micah, you have written about this. can you explain the way the court precedence backs this up? >> well, it is something you should have more general conversation about. this case involves an amish employer who objected to paying for social security taxes. what he set in the amish community, we take care of our own and we do not have to pay into social security because our community takes care and we never draw on social security and we should not have to pay into it. the supreme court said that claim for exemption is overridden by the government's compelling interest of the social security system that you

have to pay in to the social security system, no exceptions. congress did create an exemption for the amish. here the court recognized that was a burden on the amish. that is interesting. i think hobby lobby rightly makes a good point of this. there is case law. i agree with chip and kyle. i want to air the argument. what is the government trying to say? >> what do we make of the claim the government has compelling enough interest and affordable care act and the contraceptive provision as part of the preventative services which overall may decrease overall health spending and increase health care efficiency among other things? does that rise to the level of

compelling? previous panel seemed to say it does not. a professor may have gone the other direction. where do we set those arguments? >> i am going to try to be brief. the claim that the government makes is that a high level. they are saying, gender equality and public health. with respect to women. the problems are really -- a couple of things. to start off with, if you look at the time that the case gets to the supreme court, the government is actually arguing that children will not be born

from unintended pregnancies and this will be good for children because we will not have children with smaller pregnancy and roles and other things about children will be improved. it is curious for a couple of reasons. the mandate that congress gave it to hhs was about preventative services for women not with respect to services for children. number two, the argument boils down to preventing children from being conceived or once they are in embryonic stage having them destroyed. that is very unusual. number three, the argument they make about children's health, i went line by line. every single, scientific source they cited they do not have the scientific argument. about the women's health and i'm confined my few remarks to what is at stake here and the cases being argued tomorrow. it is about drugs and devices

that act on an embryo. a couple of things with regard to public health for women, these are really contested medications and devices. it is not only all of the lawsuits that have run into the hundreds of millions of dollars on some these drugs and devices because their negative impacts on women. most interesting is no study of these devices, not even one has been acknowledged by the leading researcher showing a connection between more uses of them and less unintended pregnancies. not a single study. you have to show causation. that this is a strong state interest because it will help bring about the results that the law intends. the studies do not exist. and probably because of what janet yellen has identified as

the phenomenon of risk compensation when they wrote about contraception and abortion and society meeting to a conversation if fact. we have seen more, not less unintended pregnancies and abortions. you can see the argument playing out with other contraceptives . but with emergency contraceptives, the data is really, really clear. on the argument about women's health, all the citations that they attempted to make about the cost of contraception is that impaired women from getting it or was related to gender equality, if you drill down into the sources they are siding, -- citing, the --

medicaid, medicare report, it turns out maternity is the biggest house caused the differential stop having the child, not contraception. there is no data showing. gender equality argument. i started a group that ended up ballooning into 41,000 women without trial who were angry -- without trying, who were angry that the government seem to be saying and they were politicizing during a political campaign that women are not equal unless they enter society with a child. being childless is something that has to be -- the government has to help women with it because they can enter society on the same level as men. the statements on that and the government's brief disturbed enough women that they got together to oppose them. not all women, but is deeply divisive statement on their part. >> a couple of things. first, it is true that the two cases argued tomorrow, it has

been said many times involved objection by employers to a handful of contraceptive devices or services, not the full range. kyle knows this extremely well. there are cases where employees are objecting to all contraception. i cannot imagine that you will say those people will lose. , hobby lobby should win. the people object to the whole range of contraceptives, that is too much. >> they should all win. >> let us not to be fooled it is only about emergency contraceptive. being in short or not in short makes a difference.

the other cases are about all, not just to these four. i think there are frequently a misstating or confusion about how a compelling interest have to work in rfra and free exercise cases. the government does not have to show it has compelling interest in the policy taken as a whole. it has to show it has a compelling interest in not allowing opt outs. government may burden a person's religious exercise. making this company do this is in furtherance of compelling interest. the question is about opt outs. in the least restrictive means. what are the interests at stake and opt outs? do we allow companies, some small, but some quite a large, if we allow them to opt out under rfra we are going to have how many thousand women

smployees and female dependent of the employees, who's insurance coverage when not cover these goods and services? they will be a to get them if they can afford them. some people can afford them better than other. if it is hormonal iuds which is not recommended for everybody to if they are the safest and most effective for women and the most expensive it is really hard for , me to understand the argument these women are not being harmed by the losing insurance coverage for that particular service. the government interest opposing opt outs for religious reasons is to make sure these women are not deprived of coverage. just as these goods, in this case. >> but it sets up the honeycomb. there are so many exemptions and

there are millions literally uncovered. why not allow an accommodation on religious rounds along with all of the other grounds? >> micah, you want to run that? >> you go ahead. >> the most significant of those exemptions is the grandfathering of pre-existing policies. you can keep the policy you have if you like it. we can all make fun of that. there is a policy in the aca that you can keep your pre-aca policy. they can keep their prior coverage which might exclude this kind of contraceptive. for some time, there will be women who are covered by the policies. i do not know how many.

that is the number that is not protective. this is a transition a role to allow businesses to add just over time. anytime a business wants to go to the market and wants , they wanteductibles to change their policy in any way, their grandfathering is over. when it is over, these coverage rules kick in. it is hard to know the number of women who are not covered by policies that include all pregnancy prevention services, the number will get smaller and smaller. that is the government's compelling interest operated over time. hobby lobby wins the case, that is not a transitional rule. >> i want to make -- >> go ahead. >> i was not expected to go first. one problem with his argument is

when the government declares the benefit today, it is emergency contraceptive or all contraceptives and tomorrow it could be what everybody understands to be abortive and an aging population for assisted suicide. if the legal argument goes that once the government says this policy has to include the benefit, anyone who is not provided that is all of a sudden given the level of depriving, taking away a right. i think that is a problematic legal test. mamet to respond, grandfathering respond,to grandfathering is if you like your plan, you can keep it. the interesting thing, what where time but is preventative services, contraceptive, is it a compelling and surest stop it is

something that is so important that the government must override religious objections to it? if you look at grandfathering, congress made some prioritization when it did in the grandfathering. it said your plan still has to cover your dependence of two age age 26.dependents up to it cannot have lifetime limits and no pre-existing conditions. that is congress saying these things, these items. you heard by your kids being all your plan to up to 26. your kids are happy. congress said it is extremely important and we will apply it to grandfather plans, so however long the transitional period lasts, there are millions of plans that will putting be grandfather this year and next. congress did make a sort of set of priorities and said these are important to us. and so, it seems we look at a

regulatory agency like hhs and say these preventative services are important to us. it is obviously not as important of what congress said. there is no doubt that people think, many people think the contraceptive services mandate is important. no doubt about that. the question is -- is it a compelling interest? the other thing i would say is congress, the government has to prove it is compelling. the government bears that burden of proving it. if you look evidence in this case, all the government is putting in is the institute of medicine report. if you look at the five pages that are devoted to discussing the contraceptive mandate, whether the government says if there are certain women in a narrow age group and socioeconomic group who are a genuine risk of not having

access to contraception unless they have insurance. the government has not bothered to prove or offered one shred of proof that any employer did employee working for hobby lobby. people are generous the health benefits that cover 99% of all preventative services already. those people averaging when crisis of access. i think the government have to put in something that shows to even get to the compelling interest test at all and the government has not done that. >> i think this raises and interesting question about how the litigation has gone so far. the argument is that will happen tomorrow is coming up in a very early posture. there's been no trial in any of these cases. there are no facts and any of them after discovering. we do not know any thing about the cost except for what the parts alleged in the brief.

that raises a background consideration of litigation which is the posture of all of these cases, the structure, is the same across all of the cases. it is a private employer versus government. there is a substantial constituency that will be affected by the outcome not represented anywhere in it. that's the management and employees of these corporations. no employee plaintiffs or intervenors. we do not know much about the kinds of facts that they would bring into this litigation. in some ways, it is a little early for the court to take up these cases without hearing from all of the parties that will be affected by it. he government has represented the interests of some of these employees. the way that it does that is by ,raming its compelling interest partly in the form of a claim about women's health.

that is important. there is a larger consideration and that has to do with concerns about the establishment clause. something we have not talked about so far. the rfra was meant to restore a standard. there were two clauses in the first amendment. the second was the establishment clause, congress should make no law enforcing religion. to impose certain limits on religious accommodations. one of those limits, accommodation should not impose significant burden on third parties. that is people who do not otherwise benefit from the accommodation. what the government is arguing here is that allowing hobby lobby and exemption under the affordable care act would shift the cost of paying for contraception from hobby lobby or other corporations to their

employees effectively requiring their employees to subsidize the cost of hobby lobby in complying with its religious observance. for almost all employees in this country, save for those who are employees of religious nonprofits, federal statutory right to receive these benefits as part of their employer-based health insurance. it would only be these employees subject to an exemption in cases like hobby lobby who would have to pay for this. that is the first compelling interest of the government articulated in the brief at this point. what hobby lobby is asking for would shift the cost from the employer to the employee. it is that cost shifting that raises a concern in the establishment clause. that is forcing employees to pay for religious beliefs and practices. that argument at the bottom,

women's health. first, the concern about who pays for religious exemption? employees are not in this litigation and they cannot go to the government and say we did not choose to organize a health insurance the way government to did and we are stuck the way hobby lobby is. we have interest. it is unfortunate that their voices are not heard. >> great. we are sort of remembering the time. about 20 mins before we open it up to questions. there are questions we still have not addressed it yet. some people say is not even an issue. it is sucking up a lot of the oxygen and that is the question about the particular for-profit kind of business that is claiming right of religious freedom or liberty. how can a corporation claim to excerise religious liberties?

is there something that is different than being a social service agency or religious institution that can gather individuals around a common cause -- that makes for-profit businesses susceptible to government control then other kinds of institutions? >> i think a startling amount of time has been wasted on this question. in every case, the question should be what is it that the corporation wants and what are the consequences. i share his concern that there is an establishment clause problem about shifting the costs of employers religious convictions to its employees. but we can imagine, there are so many ways to think about this.

first of all, half the people in the room have investments in some sort of social investing fund were you care about the corporate moral conscience, like whole foods and free range chickens. all kinds of enterprises that have corporate identities. most of you would not blink at the thought that a corporation could have moral commitments and a moral identity. we could go back to some things we talked about this morning. if it were an orthodox jewish merchant closing on saturday and the business was in the corporate forum. would we really say too bad? you are stuck with the law? that doesn't make any sense to me whatsoever. what makes sense is to look at exactly what the corporation wants to do and ask whether this

is something we're going to recognize its right to do, that is what we have been talking about up until now. >> i couldn't agree more with what he just said. i was in whole foods yesterday. i walked by the fair trade coffee stand and resisted the temptation to pay more for coffee. whole foods is talking about my conscience, i heard this rumor when we brought this lawsuit that corporations can't exercise religion. i went and looked at the case law. i found tons of cases that said that nonprofit corporations exercise religion all the time. i found cases it said individuals can exercise religion even in a commercial pursuit. sometimes they will lose. but there is no doubt that they're exercising religion and that commerce does not collide with religion and dissolve like acid.

there is no precedence for that whatsoever. i agree with chip that an astonishing amount of time has been wasted. >> let me waste a little more time. [laughter] >> i want to stand on this argument, either. i think this case turns on those kinds of questions. at the end of the day i would not make decisions on this basis, but these arguments have convinced appellate courts and a lot of other people are convinced that corporations don't have rights of religious liberty. i think we ought to understand what the argument was. as a matter of law there is also no precedent on the other side. there's no precedent that says a large for-profit corporation has rights of religious conscience.

there are cases involving full proprietorship like the amish employer in lee and there are cases involving nonprofit religious organizations, churches, who everyone acknowledges has free exercise right. the question is, why do they have free exercise right. they have free exercise rights because churches are understood as voluntary associations going all the way back to our framers and beyond that to john locke. churches are voluntary associations in which people come together to share religious values. the church represents their values and interests. individuals have freedom of conscience. have freedom of conscience and churches represent their freedom of conscience sometimes in litigation. no one disputes that. but that is on one polar side of

the spectrum. on the other side is walmart. a large, publicly traded corporation with millions of potential shareholders. can a corporation of that kind assert religious interest of its constituents, not only of its owners, but made of its management and its employees and so on? how are we to think about claims for religious liberty of corporations of this kind? in some ways, hobby lobby is an easy case because it has a small number of owners who -- what happens when the owners disagree about the nature of their religious beliefs? what happens when we have proxy battles over whether corporations ought to engage in religious practices or not? should we attribute religious liberty to them? these are complex questions. if the court finds that religious corporations have free exercise rights, we are going to have to think about those

questions in a lot more detail and a lot more complexity than we have so far. it is a serious challenge. i would beg to differ with professor dershowitz and judge starr that no rational person can take the other side of this. a lot of rational people have taken the other side. a lot of federal judges have taken the other side. i wouldn't be surprise if some of them do tomorrow as well. >> this description, particularly when you get into the question of large corporations and shareholders and large bodies of management, it crosses over into the question about the alleged parade of horribles. it moved to point that allowing corporations have a conscience is more problematic than it is good. kyle puts out that it is good. and we like it.

and we like to do business with that angle, briefly. but the idea that in the future, if for-profit corporations were allowed to exercise religion, you would still have to find that they were exercising religion, that was religion and not something else very it was sincere. then the government can still come back with its compelling state interest. it doesn't play out. it is indeed a complex question depending on the nature of the corporation. i think the statement about what they're doing, is a religion? may be the easier part. >> so is the only way -- you only think holding back that parade of horribles -- in other words your argument might not be grounds for claimed exemption

under -- under rfra if hobby lobby turns out for the green. >> you have the fact that you already have a variety of the civil rights laws, americans with disabilities act, etc., it turns out these companies want to do business with us. they are not looking to discriminate against people there doing business with or people that they wish to hire who are qualified. you don't have the parade of horribles in the past. what they have, however, brought a lawsuit when the government said in sure for this particular thing. second, you do have a very robust argument historically on all of these varieties of nondiscrimination points that are not in the way that

emergency contraception and other forms of contraception are competitive. >> or, the alternative is to look at history as being further down the chain. the electorate has preceded past -- the enlightenment has preceded past you on race and gender. you don't want to sell these products to women because you don't think women should be in commerce. >> it could be about a single pregnant woman or a single mother. enacts and hobby lobby's wins this case, i don't know what hobby lobby's attitude would be about spousal benefits for same-sex spouse, but around the corner, name or state by court order or legislation -- there will be litigation about hiring, firing, choosing to hire

and refusing to pay spousal benefits in the case of same-sex spouse is based on religious objections to that form of marriage. that is coming. >> so as a way of wrapping up our discussion, i want to pose the question not on how the court should rule, what is the future of religious exemption in your mind given how the court might rule? if the court rules one-way or another, where are going to be the critical issues, the places we will see the flashpoints? we just saw this in some of the state antidiscrimination laws and the state level rfra. where do you see the problems emerging, depending on how the court rules? 's just go down the row.

>> one of the beauties and the devilish qualities of rfra 20 years ago is that everyone agreed not to think down the road. are they going to be about drugs or gay rights, let's just all hold hands and jump off the cliff together, because we think there is something at the bottom of that. the courts will knock out the bad ones and save the good ones. that is so general. it is so different from a practice specific accommodation. everyone has to cover employees, but churches don't. we can see that is grounded and confined in particular. this kind of general law that opens up, this will be on the court's mind, very much on the court's mind tomorrow in the way they decide this case. it may influence them. i think it will influence them on the point that mike and i have impressed about the rights

of employees. we don't want to empower corporations to have all this leverage over employee benefits, minimum wage, maximum hours, nondiscrimination, as a matter of religious freedom. nobody knows 30 years from now what we're going to be fighting about on these kinds of issues. >> i would disagree on the historical point about religious freedom restoration act because the attempt to have civil rights nondiscrimination -- they knew they're going to face them in the future. they decided to allow the analysis to play out. they were going to wait and see how that played out. they knew the challenges were coming. i completely agree with your point about same-sex marriage. less so about people of various sexual orientations, the objection is not about people, it is about an event and institution. five minutes ago in historical terms, every single case they

had ever covered on state marriage recognitions understood it was related to kids. the whole question as to whether that is a civil right, nondiscrimination claim, it is very recent, same-sex marriage phenomenon. i'll be really interested if they do and if there is more protection for acknowledged for-profit entities, religious freedom has a higher profile. if you're going to see some better empirical data from the government than i have seen so far, i think they're getting away with an evangelization on emergency contraception with arguments that play to politics or ideology. they really haven't made much of a science argument. i am going to need to see that they're going to step it up on compelling state interest analysis heard they might be compelled to if religious freedom is more protected. >> if for-profit corporations

can make claims for religious exemption, we can see two growth areas in terms of litigation. one is, what counts as a significant burden on people who don't benefit from exemptions? what would justify a compelling interest in the form that corporations shifting costs onto its employees in a way that would cause courts to restrict those exemptions? maybe an exemption over certain drugs would not so burden employees as to create this kind of concern. lots of other claims for exemption might well do that. if hobby lobby wins his case you will see more cases testing the boundaries of that principle. if hobby lobby is successful, the other question that is raised is, what about people's

consciences, if they're not strongly motivated by religion, what about the line about caffeinated and your conscience. under don't know if whole foods is religious. but professor dershowitz made a point about this earlier. were you going to do about people who make point of conscience where it their conscience is not found in traditional religion? if you're even vaguely religious or your claim sounds in conscience of the kind that we be familiar to someone who is traditionally religious, are those people going to be protected? are they going to be protected when they own for-profit corporations? those are questions that are coming eventually. >> i can agree with everything i've heard here. one point that i would make is that we can't forget that the crisis that caused the hobby lobby case to come about in all the other cases, including the nonprofit cases, is not employers deciding to withhold

benefits from their employees because they are mean, it is because the government is forcing them to do it through a very large national health insurance law. the idea is that if the government is increasing in this way and becoming more intrusive in a way we order our lives together, then i would think people who are interested in religious freedom would welcome challenges under a religious freedom act, whether a national or state reference, to test the boundaries of what the government can make us do and what they can make us not do. i'm sure when the government says you're going to give this to your employee or provide this service to these people, if there is a resistance to that claim on religious grounds, sure, somebody's not going to get the service or the benefit. somebody is going to be able to say they are a loser in the process and someone is a winner.

we're talking about religious freedom. at least in 1993 it seemed like we had a very robust commitment to the principle, maybe it is just right that we didn't foresee all the different rubiks cube permutations of the principal. i don't think we will ever be able to see all of that. my question is do we have a commitment to religious freedom and how are we going to work that out? are going to work it out in the court system with a thumb on the scales very strongly in favor of the sincere religious believer? or are we going to have some other system? i certainly hope that we continue along the path of religious freedom. whatever the outcome in the -- i certainlye

hope we win -- whatever the outcome, i hope that everyone takes away from this case at religious freedom is a robust, real commitment that we all should make to each other. >> we have about 15 minutes for questions. i ask that you introduced yourselves, be exceptionally brief so we can distribute questions around the room, and there is a microphone with a fine young georgetown student bringing it around. please wait for the microphone. >> i am the ceo and cofounder of a company which, like hobby lobby is a family owned business. more than most in the room i understand the gut wrenching choices that are involved in

staking your business and your fortune on doing the right thing. one has to admire the greens. -- istening to the panel [applause] i do believe that companies are moral agents and therefore this kind of question has significant implications for business people, particularly family business people. i am struck by what seems to be missing. there is a lot of talk about it there, but a theoretical relationship between the company and its employees. we have a relationship of choice with our employees. they choose us and we choose them. it is not a theoretical relationship, it is a real relationship. the notion that we should simply drop them to the tender mercies of the health exchange and just suffer a $2000 penalty is a highly charged, it is a moral decision for us to do that third

-- to do that. can we save lots of money? we certainly could. morally, are we willing to throw them to the mercies of the system? i'm a simple businessman who has to worry about making his way in the free market and making payrolls on friday. but what seems to be missing to me from this discussion is the notion that that relationship between us as employers and our employees who choose to be with us. if we failed to provide a benefit, certainly they will vote with their feet and leave. i do not believe they are silent. i believe they're represented in the free market of employment. please educate me as to why that issue of employee/employer relationship has not come into the discussion on the dais today. >> i missed the beginning of the remark, so are you a

businessman, is that the beginning? >> yes, cofounder of a business. >> i don't know how many employees you have or what your relationships are. you speak as if you are someone who cares deeply about their well-being. we will take that on good faith. i still wonder if the affordable care act had left it to you and your employees to negotiate the contents of the health insurance policy, or if your employees unionized, what kind of bargaining power with they have, what would they push for or against? would you not want to cover certain high-end expenses? would you not want to cover plastic surgery because you had some concerns about or principles against it? we will except that you care about the people who work for you and they care about you and they care about themselves. so we have some choices. either we let it go to bargaining and maybe it will come out whoever comes out, or the government specifies minimum coverages because they think of is what everyone should get. there are plenty of people who think that the affordable care

act would be better if it was medicare for everyone and single-payer. that is not the way it runs. it is left in the employer's hands how to manage that, but the hobby lobby case focuses on particular goods and so suggested in a cafeteria idea where someone is picking and choosing their coverage. i am not convinced that is a good general policy, religious freedom side. -- religious freedom aside. >> anyone care to add? >> hi, i am charles. i'm also a former georgetown student. my first job i was the hillel rabbi. my question is, if hobby lobby prevails, would a logical corollary be a successful claim

by a jehovah's witnesses owned company not to provide coverage for blood transfusions or indeed a company owned by christian scientists not to provide medical coverage at all? >> you know, we hear this -- we call it this parade of horribles -- if they win then this will happen and this will happen. there are lots of responses to this. where are these claims? i have never heard of one. i tend to think these are truly hypothetical claims. if such a claim was made and the government had a blood transfusion insurance mandate or something like that, one would think the government would have powerful evidence that that is a

compelling interest that it must have that mandate. it wouldn't have a grandfather exemption, for instance. it wouldn't say if you haven't made certain changes to your plan you can avoid the blood transfusion mandate. i cannot imagine that state of affairs. i think the simple answer would be, maybe it is too simple, because i've not seen a claim yet and i don't know what evidence would be involved, if such a claim ever arose, which i think is highly doubtful, the government would probably win. >> let me make one small point. either do with kyle that the government would win. i also think there is some theology going on here about which states -- and this is a theological choice. i'm not objecting to it i'm just noting it.

which states will say -- we can't take let transfusions or we will give our children blood transfusions that we don't object to others having them. we will fund the policy that allows or employee to have them because it is there matter of choice about health and faith. these cases, the contraceptive cases involve choices about what others are going to do, not just what employers want to do as a matter of religious conviction in their own health care. that is a big difference between the two categories of cases. >> i was wondering what the portion -- what the hobby lobby people pay now currently per employee for health insurance coverage, which they do have, i'm sure, as compared to the fine, the $2000 fine?

i was wondering if that was relevant. what portion of the aca cost covers the birth control? is there some way that could be accommodated? >> i do not want to evade the question, but we don't want to talk about confidential information. we will answer this way. the idea of simply just dropping insurance, that is what the $2000 penalty goes toward. if you drop insurance and your employee goes on the exchanging gets some kind of subsidy, then you have to pay $2000 per employee penalty. >> how good is their insurance versus the aca. >> that is the issue of someone throwing them on the tender mercies of the health insurance exchange. the other issue has always been very clear and the government has never contested the idea that that would be catastrophically disruptive to

the business and to its relationship with its own employees. after all, we have an employer health system in this country. it is underwritten by the tax code and there are reasons why we have an employer health insurance system. there is a reason why we depend on it. the government is saying we are not good to create an alternative system for contraceptive benefits or other health care benefits, we're going to glom onto the health insurance system and make you part of that, because it is a convenient way to do it. i would answer it that way. >> there was quite a bit of talk about the alleged cost shifting and employee burden. isn't that the case that the

affordable care act created a regulatory burden on the employer and so there is an extension on that burden, doesn't that bring us back to where we were before the aca was put into effect? >> the question of cost shifting. it depends on what your baseline s are. the first thing is to say that is commonly cited that about 90% of employee policies cover this. really, what the aca has done is shift the cost onto employers. the first cost shifting happened there. the other point to bring up here is the cutter versus wilkinson point. the supreme court takes a look at the application and says wow, it is an accommodation. is it an establishment? if the government has created a

burden and then they decide to accommodate it so long as they , do so in a nondenominational a obvious way. you are fighting over baselines here as to what burden on the fisheries is. -- as to what burdening non-beneficiaries is. i'm suggesting that not only because of the data that is outdone what it is doing to people and all the government stayed on women's health, even if you set that aside and just asked the question, what is the limit to the government declaring a benefit and then saying your refusal to give it is shifting the problem onto non-beneficiaries. that to me is one of the most interesting questions here. >> i agree it is interesting, but the baseline is the statutory right that is provided by the affordable care act. it would be like in united states against lee, the

employers says well, you shifted the baseline when you created the social security system. no court will buy that argument that there is a baseline shift because of statute creation. we have all kinds of statutes attached to employer relationships. this is one. the fact that it is new does not change anything. it is just like all of these other kinds of statutory entitlements that the government has created. i don't think that can be the principal that statutory rights don't change baselines. i don't think that can be an intelligible principle for determining when employees are burdened by exemptions. >> i would disagree with that reading of lee, however. i don't think it was about shifting costs to employees, but the employer getting exempted from what they referred to as a large, uniform, actuarial ly complex tax system. here, what think is a private to private transaction, a company

to health insurance company. the question of the employee will have to pay more for contraception versus less, that is a very different question than lee. >> we have drawn to the close of this panel. i expect everyone will be looking forward to the oral arguments tomorrow and learning that we know nothing about how the court will rule. we will have a number of other months to wait for the outcome. i wish you to join me in thanking our panel. [applause] >> that was a terrific panel and i don't agree with shakespeare who said let's kill all the lawyers. [laughter] i absolutely don't agree with him. ladies and gentlemen, you have

heard a lot of law, you have heard a lot of cases. stick around for our next panel starting at 4:00. is religious freedom good for business? >> live events to tell you about today. the house foreign affairs committee marks up a bill supporting ukraine and sanctioning those undermining ukraine's independence. that is at 10:00 eastern. a subcommittee will hear from members of a federal communications commission's about the budget for next year. >> this is the conference report. pages weighing 14 pounds. [laughter] this is a reconciliation bill.

[laughter] six months late. that was 1186 pages long weighing 16 pounds. [applause] this one was two months late. it is 1007 hundred 50 pages long, weighing 14 pounds. that was a total of 43 pounds of paper and ink. you had three hours. three hours to consider each. , my office ofople

management and budget, to read the bill so the government would not shut down. congress should not send another one of these. [applause] no, and if you do, i will not sign it. find a more highlights from 35 years of house floor coverage on our facebook page.

c-span, created 35 years ago and brought to you by a public service -- as a public service by your local cable or satellite provider. today's headlines plus your calls, live on "washington journal." the house of representatives is in session at 10:00 for general speeches. today's agenda includes a bill regarding coal mining regulations. in about 45 minutes, we discussed the supreme course of sebelius versus hobby lobby. at 8:15 eastern, we continue the look at the case regarding contraceptive coverage under the affordable care act with ed whelan and elizabeth wydra. joined by kevin, a staff writer for "the hill."

"washington journal" is next. you can join the conversation on facebook and twitter. host: good morning. it's tuesday, march 20 6, 2014. you are looking at a live shot of the supreme court, where the justices will hear arguments in the highly anticipated hobby lobby case. supporters describe it as an important moment for religious freedom productions -- protections. we will be discussing that case for most of today's "washington journal," how to get the conversation started, we want to ask our viewers whether you think there should be more or less religion in public life.