>> what a magnificent tree. ladies and gentlemen, thank you, everyone for coming tonight to , join speaker boehner. the minnesota congressional delegation. the u.s. forest service. the united states navy

ceremonial band. and all of us for this year's lighting of the capitol christmas tree. merry christmas, everyone, and good night. [applause] ♪ [captions copyright national cable satellite corp. 2014] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] ♪

washingtonext journal, from the washington examiner on the 2016 presidential race and potential campaigns by jeb bush and elizabeth moran, and we will talk to a boston college professor on her book about her role on public diplomacy in pop culture in shaping america's image abroad. washington journal is live with tweets, every and morning on c-span at 7:00 a.m. eastern.

here is a look at some of the programs you will find christmas day on the c-span networks. holiday festivities start at 10:00 a.m. eastern with the lighting of the national christmas tree, followed by the white house christmas decorations with first lady michelle obama and the lighting of the capitol christmas tree, and just after 12:30 p.m., celebrity activists talk about their causes, and then supreme court justice samuel alito and jeb bush on the founding fathers. then venture into the art of good writing, and a 12:30, ca feminist side of a superhero, with the secret history of wonder woman. at 7:00 p.m., an author and others talk about their reading efforts, and then on c-span3 at 8:00 a.m. eastern, the fall of the berlin wall with bob dole and speeches from president john

kennedy and ronald reagan. at noon, fashion experts on first lady fashion choices and how they represent the style of the times in which they live, and then former nbc news anchor tom brokaw on his more than 50 years on reporting world events. that is christmas day on the c-span networks. for a complete schedule, go to c-span.org. q&a, washington post fact checker glenn kessler on his biggest pinocchio's of 2014 award. the politicians and political groups he believes made the biggest false claims this past year. >> democrats tend to get a little bit more upset, because i media,hey bow to liberal and they think that the media is on their side, whereas republicans, they firmly believe not, so they kind of expect that they are going to be -- the

washington post is not going to be fair to me. i hope, thatng, over the past effort your years i have done enough back and -- over the past four have done enough, so people grudgingly say, ok, here is someone we can do business with. majority pack, which is affiliated with harry reid, they stopped answering my questions midway through the season, because they felt they were not getting a fair shake from me. >> sunday night on c-span's q&a. >> up next on c-span, journalists who cover the supreme court on how religion affects the high court decisions. newseum, new zealand --

this is an hour and a half. >> let's see if this is going. it is going. good. good evening, everyone. welcome to the night conference center at the newseum. we are very pleased to see everyone out tonight. either you don't like football or you are very interested in this topic, one of the two. i am glad you are here. i only heard about this myself last minute area that is how far out of it i am, but there are probably some fans you want to have this discussion, so thank you for being here. if you are not on our invite here someappened in

other way and did not get an invitation to our programs, let us know, because we would be happy to put you on that list for future programs. , and iarles haynes direct part of this program. we are so happy to be partnering oment"gain with "m magazine, which is a wonderful publication, as many of you know, part of great programs are, together, sponsoring a discussion that is contentious, murky, but always fascinating topic, which is the u.s. supreme court, and we have an outstanding panel. i would just note that on this years of have over 100 experience covering the u.s. supreme court, and that is just lyle denniston. [laughter]

not quite, but you are going to get there soon. we are very, very fortunate to have this outstanding panel. i'm going to turn things over to opinionartz, who is the oment"r over at "ml magazine, and i will turn it over to her. >> good evening, everyone. welcome to tonight's discussion about the supreme court decisions. my name is amy schwartz, and i am the opinion editor of "moment" magazine, and this is the premier magazine of to which culture and relisten. religion. the editor and chief is here but toiling away on a deadline, so making an appearance, and our wonderful partners, charles haynes and the freedom center of

the newseum institute. we are looking forward to a wonderful evening. thank you also to the staff of both our magazine and the institute, who have done so much work to bring this evening together. that asc tonight is one recently as a couple of decades ago would have been widely considered taboo. our supreme court justices, are they influenced in their decision-making by the opinions they bring to the bench? most casual observers and even most legal observers would argue back then that they should not be bringing religious conviction to the bench, if they had them, but as a supreme court justice, they would have said, and as john roberts contended at his confirmation hearing in 2005, far from applying his own believes, he simply calls them as he see's them. but much has changed since that earlier consensus and even since that confirmation hearing almost 10 years ago. the traditional makeup of the

dramatically,ged and we know more about the views then we knew before, because the times are more wired and interactive, or simply because the justices are more vocally devout. does it matter? religious beliefs have more of an impact than they once did, and if so, what impact? where will we see the difference? separation?ate gay rights? abortion? or things we cannot even envision? we have organized a panel. constitutional law, and in the marshall breger at the school of law at catholic university. he was a senior fellow at the heritage foundation, and during the george h.w. bush

administration, he was chief lawyer of the labor department. to 1991, he was chairman of the administrative conference of the united states, and from 1987 until 1989, he served as an alternate delegate at the u.n. in geneva. he has also been a liaison to the jewish community under president reagan. practicesrmiel constitutional law. he teaches constitutional law first amendment and a course on the supreme court. he is also part of the american bar association on individual rights, and he writes a blog about explaining the supreme court to law students. he is a co-walker of the definitive graffiti of william j brennan, who i am sure we will author on- definitive

william j brennan. we have reporters who cover the , and bob charles said barr and has been a washington post reporter ever since 1987 and has covered the supreme court since november 2006, including the nominations of sonia sotomayor or and elena , and return to the court. is the senior news reporter covering the supreme court, which he has been doing from 1958, mostly with newspapers, including the star. past 10 years, he has been running for an online clearinghouse about the supreme court. he has received numerous awards, including for legal journalism, and he has taught at colleges and universities. has covered the court

and34 years for usa today more, and since 2004, the legal times, the livejournal, and the supreme court brief, a subscription newsletter. he is an author of a book published in 2005 by congressional quarterly press. he is a longtime member of the steering committee, and in 2010 was inducted into the freedom of information hall of fame. and other institutions. so we are very grateful to all of these very knowledgeable supreme court followers for giving us their expertise, and i am going to ask each one to begin by speaking briefly on the of whether then

changing makeup of the supreme court has had an effect on its jurisprudence. for the first time ever, there are no protestants on the board. three jews and six catholics, of varying clinical flavors. does this matter, and if so, how does it matter? how is it illustrated? go from this side to that side. we will start with bob lawrence. -- barnes. set to devout justices hear religious objections to health care law. >> well, thank you for having me. it is a pleasure to be here. the reason i wrote that story is because i was talking to a former supreme court clerk, now i prominent law professor who pays a lot of attention to these issues, and he told me that when

he was clerking at the supreme court, if anyone had asked him if any of the justices were religious, he would have said no, that none of them talk about it. he sought no real evidence of them being religious, and he thought that this court was very different. these justices have talked about their faith, much more, probably certainly justice scalia. he is the most outspoken about it. that intellectuals have to be what he calls fools for christ, and to be in to say that some things are about-face, and when you think about the justices, they all have an interesting connection to religion, i think. sotomayor and thomas talk about how parochial schools

really were what lifted them out and in situations, neighborhoods in which education was not terribly valued. sometimes, justice kagan, who she isy would she -- say not that religious nonetheless said she had religious instruction three times a week. she was the first girl to be bat ed at her synagogue. she said it was good, not great, being justice kagan, and all of the justices, i think, have this connection, and i do not know if any of us can say how that they do cases, but i do think it has a big impact on those going to them. i thought, for instance, that the obama administration and the

recent hobby lobby case about whether private business owners had a right to say that their religious objections keep them from offering certain kinds of contraception was a very very sort of respectful of religion deliberate from the government. all of those briefs talked over and over again about how it was not at issue what these challengers to the law believed or how valued their believes should be, and so i think that the difference has come in the way people approach issues to the court, and maybe some of the cases that the court takes itself. we could talk about the town of beforecase about prayers a town council meeting. that is one that the court did not have to take but decided to

take, and it really divided the court, so i think one thing to think about is how with the justices have said about religion affects the way people approach the court. >> i think i would have mentioned to some of the same things that bob just has about the justices, although i think there is one quote from the justice scalia article, that we must be fools for christ sake, to him and said, are au sure there wasn't a, -- comma in there, and he liked that. [laughter] principled about their religious faith, in general. i think it could be partly because so many people -- whatever they say, anything, people are watching much more than they used to.

justices uncommon for to talk about their faith, but people weren't listening maybe 20 years ago. --y it is also the case maybe it is also the case, and this may be stereotyping, that they did not speak as outwardly about their faith as some catholics and some jews. what i would say is that i think howoes have an effect on they look at cases and look at life in the same way, coming from harvard or being born in the south has an impact on their perspectives. culturalt one of many backgrounds,heir and even justice scalia has said we come to the court. we are who we are. the come to the court with our

and the elements that our parents brought to us in raising us, and we cannot avoid that. but he has said, and they all have said that they keep that separate from our professional lives, so i think it is just ,omething that is of interest and i think that they recognize is makingthis change up six catholics and three jews. justice sotomayor or -- at law recalling that she was talking about the types of diversity that the supreme court ought to have. it ought to have more people , a civilerent areas

rights attorney or two instead of a corporate lawyer, and then she said plus we all believe in god. that was kind of striking to hear that, do think that there is nobody on the court who is an atheist. i think you could argue -- we could talk about this later, but it would be interesting to think about whether a devout atheist could ever be confirmed to the supreme court. i kind of doubt it. an atheist on the supreme court? >> i sure don't think so, and there are not many devout atheists in congress either, for that matter. when justice said he was agnostic, so that is part way there. , as well, but i will wait until it is my turn.

>> go ahead. >> in some ways, i have to say i am kind of a dissenter, because i am not sure being a catholic or a jew or even a protestant -- that does not tell you much about how they're going to make decisions, probably because there are so many ways of being a catholic, so many ways of being a jew, so many ways of being a protestant. i do think that what you bring to the court, your experiences, your background tells you something about how you're going to approach cases, and not to open up a controversy again, but i think justice sotomayor or, a latina, brings some sense to that. that is what she was bringing. thurgood marshall brought in special experience to the court. he was outvoted, it was something the justices were sensitive to.

determine theover notion of the effect of religion. that one of many things are part of the influence on justices. having said that, i think the topic is very interesting, because it has to do with the selection process. there is a sensitivity. i think it was eisenhower who talked about the qualified catholic. do with notions of representation. i mean, the notion that there be a woman on the court was important, and i guess protestants are upset that they do not have a protestant on the court, and it also raises a lot of interesting theoretical issues, because it goes directly to this question of can you leach out, to be a professional,

do you have to leach out your personal distinctions, your personal characteristics, and i think that was a notion of what it was to be a professional in the 1940's and 1950's and before, so you had this view that you're supposed to remove your jewishness from being a lawyer. , ande your protestant this i think we have a different view of the world now, and that raises some interesting questions and solve some other ones, but i think we should be aware that we are living in a just where it is not justices, but all politicians are talking about their faith. it george h.w.y, bush, one of my jobs was to sort of take him around the jewish community a bit. he could not stand wearing a

yarmulke. it had nothing to do with any negativity. it is just that he felt that his faith was private. he should not be making a show of it, and whether they think that in their hearts or they have gotten over it, because they will talk about it a lot. but so surprised that the justices would do so, so i think there is a lot of interesting issues in this whole question, and i think one of those really goes to a point, i am just an umpire. there is a terrific quote. by a law memorize it, professor. and he says much harm is done by the myth, but by merely putting on a black robe and taken the oath of office as a judge, a man ceases to be human and ceases of all predilections. i think that was in his second but the pointn,

is as much as justices say that is what they are doing, we have around a question mark that. >> when was that? >> in the 1940's, when he was in the second circuit. want to talk partly about how things have changed. i know you're an expert. was ok. i apologize first for my boys. bornis the voice i was with, and that is why i am not a broadcaster. [laughter] when i was in high school, i did sing in the choir, but every now and again, mrs. peterson would say, let's try it again without him. thank you for having this event and charles for sponsoring it. this is a fascinating topic. i have recently been reading a

processthe ratification of the constitution, which is a fabulous work, and it is interesting how often in the ratifying conventions the questions of a religious test for public office came up as an issue, and as you know, the constitution itself insists that there not be a religious test for holding office in the national government. so to a degree for a traditionalist like me, or at least a traditional journalist, this makes me a little uncomfortable, because i tend to think that religion is a matter of private choice and private exercise and that we should not, in fact, have our public officials in terms of how well they serve their faith. i must tell you that i am

married to a baptist, who is a seminary graduate, who is about as rigid a separationist as you can find, and a lot of that has rubbed off on me, though i tend to be somewhat wary of this topic. however, there are a few areas where i do believe that the religious preferences of the justices or the religious identities, if you will, do have an impact, and i think the steady movement towards expanding the sphere of religion in the public square is inconsiderable part a product of certainort with which fates, particularly the roman him, if youth, has will, co-opting the government in order to advance the principles of that faith.

and i think -- i think that is a very important influence in this precipitouslyes moving religion more to the , and itf public affairs is very different now. i do also think that the abortion question is now driven inconsiderable part by the roman catholic perspective on abortion , and, of course, when you talk about abortion, in this court, you have to talk about anthony annedy, who probably holds decisive vote on that subject. one cannot read his opinion in the gonzalez case, upholding the actial birth abortion without seeing how he was, if you will, take it into camp by some pretty junky science about

the way women react to questions about their reproductive health and how they suffer in terminally in a good deal of agony after they have undergone this particular procedure, so i think justice kennedy is acting out of his faith in that area. , to knoways difficult where a kennedy is going to wind , liberty, interest, because ismuch of his jurisprudence driven by the whole constitution structure and history is devoted towards the service of liberty interests, but when it comes to women's liberty interests, i think justice kennedy is pretty close to tone deaf.

having said nothing controversial -- [laughter] but i apologize. i miss spoke. you are the author of a book about justice brennan. and i want to talk a little bit as lyle did. justice brennan, i think, it is to say the most ardent separationist in the modern history of the court, and i think he was that precisely he was catholic. that is where his catholicism took him. religion,d deeply in but he believed that it was private and personal and that having religion in the public square and in public life was divisive. sake, justice brennan was on the court from 1956 until 1990.

he participated in decisions prohibiting school prayer and was vilified by the catholic church for doing so. aboutt strongly enough his views in those cases to write a separate 50-page concurring opinion in the second school prayer decision in 1963, a case called abington school district versus shep, and i was looking over that again today, about whether or not we could ever have an atheist on the court. justice brennan in his opinion in 1963 talks about the establishment clause embodied the framers conclusion that government and religion have discrete interests, which are mutually best served when each of voids too close proximity to the other. it is not only the nonbeliever

who fears the injection of sectarian doctrines and controversies into the civil policy, but in a high degree, it is a devout believer who fears the secularization of the creed, which becomes too deeply involved with and dependent upon the government. i think that was the essence of justice brennan's separation, the believer, sort of having government involved in your religion demeans your religious beliefs. and i think that was his view, and i think that view is gone. i am not even sure there is anybody on the court that would share that belief. virtually all at this time on the court, he paid personally for it. a few months after writing that opinion in 1963, he went to a

was an which the bishop visiting bishop from richmond, virginia, and railed against the court with justice brennan sitting in the front row, recognizable to the bishop. at the end of the mass, justice brennan's wife kissed the bishops ring and then said to the bishop, you are not really fit to have us kiss your ring, and they did not go back to mass for three years after that. when they went back to mass, they went to mass in virginia where they had a saturday night mass, where he thought nobody would recognize him, and nobody did for a little while, but i think things have just changed romantically. to the, that leads question about whether the same -- several people have mentioned the same religion or the same religious beliefs can lead to different outcomes in terms of one's -- the decisions that one

is taken to. we have different politics. i wanted to go back and ask you draw a would distinction between what a mentionedpeople have about their religious beliefs against simply their life experiences. mentioned justice scalia and justice sotomayor have experiences in parochial school. >> and justice thomas. >> and justice thomas, as well. how does that affect their belief in school voucher cases? theyere a suggestion that are more open to that sort of thing? maybe i have drunk the

kool-aid at the court, but i do not think so. i think the justices really do make an effort to separate their own, their personal views on things like that from their decision-making. think if they have experience at parochial school, it does not mean they're going to be in favor of vouchers. unfortunately, i mean, that is my perception, but there is another perception out there, which is the opposite, that the justices kind of fuel this one. know, the lateu term abortion case. this was when there were only five catholics on the court, and all five of them voted in favor of this law that prohibited

late-term abortions, so that feeds the stereotype that catholics might be to advance the church's agenda, but, again, that is very much like, i think, the decisions where all of the republican appointed justices vote one way, and all of the democrat-appointed justices vote to the other way. i do not think it is materially difficult from other types of influences in the justices' space -- lives. question ofhe identity, and identity factor in selecting justices leads to questions that are asked, for instance, at their confirmations about either their religious views or their willingness to

separate their religious views from the court. i think, marshall, you brought up the question what can be asked. >> well, you have to be -- ought -- you cannot come right out and say, do you believe in this, so, presumably, you have to crawl your way around it. but, invariably, the justices umpire, or myan job is to apply the rules. i am not sure if this was at a confirmation or afterwards. listen. i just apply the constitution. now, in my private morals, you cannot take me out of my skin, and my catholic, and i listen to

the catholic doctrine. he can easily say that because he is an originalist. he interprets the text of the constitution as it was believed or understood at the founding. values at thatal time were also conservative values, so they would be in pregnant, you might say, into the original understanding, if you believe in a living then, in a way, his morality views, they become more relevant, i think, so he can do it somewhat more easily than someone who believes in a living constitution or almost for the purposes of a constitution, where the moral view is in bedded. now, whether one can actually live up to that is another

they, but that, i think, is general approach created even with brennan, at his confirmation -- his nomination hearings, and he had to say very , i separate -- i made my peace. publicstitution, in my life i follow the constitution, and in my private life, i am a good catholic. so people want to know. what it means you being a catholic. that is why i said there are so many ways of being a catholic, just as there are so many ways of being a jew that it is more the social identity that you have or that social background that you have that affects how you vote much more than just a label. >> i think it is important to there is not a

catholic seat on the board. there is not that there is a jewish seat on the board. justice ginsburg has said some of the justices that preceded us were jewish justices, and justice breyer and i are justices who happened to be jews, and, certainly, president george w. bush did not set out to put two catholics on the court. in fact, remember, he nominated an evangelical protestant, harriet miers, who did not make it, so i think it is much more that they look at the ideology of the person and their background then religion. >> i think there is an irony in that. for brennan, his catholicism was the main issue at his confirmation hearing. as marshall described, they asked him, if it comes to

loyalty to the pope or loyalty to the constitution, what are you going to choose, and he basically said, senator, i take the same oath to uphold the constitution that you did, but there was a controversy over whether to ask him that. there was a controversy over what he might say, and then the irony is he arguably voted less consistently with what one might consider to be catholic views. i mean, he voted in right in favor of abortion and contraception. he voted against school prayer. he voted against various forms of financial aid to religious schools. he is about as kind of anti-catholic in his voting as imaginable. ask the question, and there is no controversy about it, and yet, we are here notussing asking whether or

their religious views influence them more than 50 years ago when we did ask the question and it was controversial. >> you have to be fair. people really do not think of death this ginsburg when she was nominated as a woman judge. important to her identity, it was believed, and with the jewish justices, in spite of being jewish. cardozo was nominated in spite of being jewish, so it was not only until frankfurt or when they thought he is replacing a jewish justice that we got into this notion of jewish representation. havehat you have when you three. now there is no need for a jewish seat. >> you brought up a little bit about this question of whether talking about the religion of a justice or a perspective justice is really about talking about

their politics. we talk about how that has actually played out in recent cases? is theance, how catholicism of the various, now that there is so many, how has it played out in terms of the gay marriage decision, or even the health care laws, which you might have thought religion would play a part. did it? the hobby say in lobby case, which is the case having to do with the right of a private business with the religious freedom act to refuse to provide contraceptive health coverage for their female employees. say that justice alito's opinion in that case very much was influenced by his religious preferences, because to exact the notion that a corporation, which is an artificial entity,

can have, based on a manner of a religious police system, transferred to it by its owners. aside from being pretty close to ludicrous, it is highly debatable in terms of a social philosophy. i do think that justice alito probably went into that case believing that corporations, because they are in some sense people -- even george romney believed that, because they are in some sense people, you probably are capable of absorbing the religious preferences and value system of their owners. i think that is probably a pretty good example of that. in gay marriage, one of the reasons that you have to read

the gay marriage decisions differently, i think, is that the lead opinion was written by kennedy, but it was driven by his liberty perceptions rather than by his catholic value when you get into ist with justice kennedy, it harder to trace religious sources of his jurisprudence when he is talking about liberty interests. i do think -- i wanted to bring up another example of where i think a jewish justice's value system influences his jurisprudence, and this has to do with justice breyer, but before he was a justice, when he was a law clerk to a jewish goldberg, whate they remember, if you read the papers at the library of

had law clerks, stephen breyer. he wrote an opinion, a contrary caseon, for goldberg, in a on access to birth control measures, and he wrote a separate opinion which articulated the concept of a emanationterest as an from the 14th amendment, which, i think, is where that concept began inserting itself into constitutional jurisprudence, and i do think that steve is probably driven by his kind of social justice instincts as a jew and believing that probably he shared those views, and that is why i think he was allowed to lay out that opinion, and i not directly

traceable to his religious faith, but i think it was certainly influenced by it. >> an interesting fact about intice breyer, just to show modern times how these things can get sort of mixed up, he is a jew who was married in an anglican ceremony in which they omitted references to jesus, and he has a daughter who raises her children as jews, and a daughter who is added to skip alien priest, so he really has everything covered. >> i would also add in relation to breyer, i think one reason for the strength of his dissent was a school voucher case thatof historical sense

mixing religion and politics in the state, in the school arena will -- brings up all of the old thinks of religion, and i the protestants would view this thengly related to it, and jews would have strong things. >> marshall, you said to me in a conversation before this that there were aspects to alito's hobby lobby decision about contraception that had to do with catholic doctrine on who is responsible. >> i do not know about catholic doctrine, but the different notions of what makes you , fromcit in an action what i understand is a lot of catholic doctrine, if you take a

wide view of what makes you -- what action or not action makes you complicit in an immoral act, and it may be -- i think it is, but it is wider than ordinary notions of complicity, which you could have indirect interventions that would make you not complicit, so would not iy as some authority, because am not, i suspect that some of these notions about what led to complicity may come from his knowledge of catholic doctrine. time to go tot questions, but before that, i to return at least briefly to this question up appearances, and, tony, i think you are an expert on something called the red mass? can you explain about that? would just mention it

briefly. it is an extraordinary event held each year with the catholic archdiocese of washington. it is a red mass. occurs on the sunday before the first monday in october, which is when the supreme court term begins, and it has become thata regularized ritual it is like being celebratory kickoff of the supreme court term. the point, to a degree, that lyle was making earlier, that the catholic church may be more than other churches has made a project of trying to impose its doctrine on the judiciary and other parts of and it is --t, looking at it cynically, this is an opportunity for the roman catholic church to have a catholic audience that includes almost always six out of the nine justices for proselytizing

or not proselytizing but sermonizing issues that concern it, and it is really -- i cannot think of any other institution that has that type of access to the supreme court. years -- i have been covering it as a news event for probably 25 years or so. earlier years, like the sermons were very politicized. abortiond rail against , that anyof murder law that advances abortion is but that kind of rubbed certain justices the wrong way. in fact, justice ginsburg --

that is the thing that not only butolic justices attend, jewish justices a few weeks ago, justices kagan and another see,ded, along with, let's four of the catholic justices, but, anyway, justice ginsburg of theannoyed about one sermons, it was so antiabortion, that she vowed she would never go again, and she said that even friends- she is close with the scalia family, even they were embarrassed iv stridency of the sermon. since then, it has gotten much more toned down, although there is still quite a bit of talk in the sermons about the separation and how itnd state

is appropriate for people of faith to bring their faith to work with them. and i think to have that annual opportunity, to make that plight , i think it is an interesting thought, and it is special to the supreme court. whether the justices then go home and put into practice, i don't know. >> i mean, to me, the very existence of this event, and i recognize it has been going on for a long time, suggest its own ofropriety, and regardless what is said at the sermon, one of the core issues now in the town of greece, in the legislative prayer case 30 years ago, the argument that the prayer is not religious, it just has a solemnizing effect on

that is what the catholic church is claiming it is doing here. putting its own spin on the supreme court term. to go to the mass is to accept the validity of that argument. i think that is inappropriate. >> i think that is a little unfair. whatever they are, they are autonomous beings. they are not going to be proselytized or overwhelmed. i don't know if the town of greece has anything to do with it. that is where there was an official state or government event. this is a voluntary activity. reyer the first year

he went to be he said, it is unifying. it is a good way to start. >> blessing the supreme court term. >> we don't get up set when a police -- priest or rabbi blesses the yachting ring. some communities depend on the fishing season, the priest blesses the boasts. -- boats. if you have ever attended the national prayer breakfast, most ,f the congress and cabinet including jewish congressman, they are all there getting a

religious message. we have this. also, a kind of feature in american society which is less separating or do --inal emotional denominational aspect of religion but religion. the way if angelical's used to think catholics were the -- the way evangelicals used to think catholics were the core of babylon. can i said it -- can i say that on tv? i think it is extreme to say it is profit ties in. -- proselytizing. >> there has never been a president inaugurated without a prayer. >> let me being extremist. they are two places in washington from which supreme court justices should stay away

religiously. one is the state of the union. not lowe of which is comedy, it is high comedy. experience forng a self-respecting judge to go and sit there. pretend to be interested in what is going on. pretend to be detached from it. the other place they should not be seen is the red mass. the red mass -- when i grew up in nebraska, we used to talk about the fox in the chicken coop. going to the red masses putting yourself in the chicken coop. when the priest gets up, he is the fox. he is very interested in consuming those who sit in the audience. [laughter] just to be a little bit moderate about that, there are two bank

places where justices should make up their minds that that is inappropriate to their job. >> maybe we should stop on that note. open this up to questions from the audience. are two microphones. we are asking you to go to one of them. and speak. you can maybe identify yourself before you do so. -- weas wondering about have to justices who are involved with opus dei. i was wondering if you thought that was appropriate? >> is a religious view. unless you want to go back to the 1915 notion that catholic followin government whatever rome says, whatever the

pope says, that is their religious view. they have the right to do that, like a jew -- >> there are no jews that are part of the -- >> unless you are saying that an orthodox jew could never be on the supreme court, that is a contingency. generally it could happen. religious have their views. >> i'm not saying they should be on the court or not. i'm wondering how that might impact someone on the court. if there are any kind of activity that should rise to the level of disqualifying or recusing a justice from serving or serving on a case? >> justice scalia recused himself from a really important case over the phrase, under god,

in the pledge of allegiance. he had attended an event at which his son, a priest, appeared. justice scalia undertook to a opine on the- issue. he did thereafter take himself out of the case, did not participate. which i thought was entirely appropriate for him to do so. the inappropriate thing for him was for him to go out in public and take a position on something he knew was coming before the court. that i haveher case noticed. this crop of justices loves to opine public forums and on what they are doing in their

judicial business. why theant to know supreme court is not yet hearing justay marriage cases, follow ruth ginsburg around to various public forums. she will to you inside stories about what is going on at the court. if they are only granting and the settings of the five cases a year, it seems to me they could grant a few more if they would cut out some of their public appearances. >> anybody else on that? another question? i'm hoping the supreme court will weigh in on releasing withheld records regarding the jfk assassination. it brings to point an --eresting statement made by the cia stood for catholics and action. we are a bit -- very roman

catholic culture. i would like to draw a question to you from a very important , entitled "rulers of evil." traces the influence in western history of the jesuit order, the military order of the roman church. ,t points out that the jesuits in history, they are a military order. they report to a general. question? catholics participate in confession. jesuit priests are among the confessors to the bus powerful new world, including supreme court justices. it can work as a two-way process.

the reform church does not have confession. confessional process a factor in how roman catholicism and government officials who are roman catholic can be influenced from rome? >> i would say that is an exclusively a private matter. i have various people to whom i go and make confessions about my inadequacies. i'm not about to pray that before you tonight. justice to me to ask a to reveal how they practice their faith is to go way beyond the pale of proper public discourse. >> i am the legal director of the center for inquiry representing atheists and secular people that scalia dismissed.

willieve it was, they never be satisfied, we don't need to consider them. we were talking about complicity in hobby lobby. this new idea that the catholic majority has brought in. if you make it easier for somebody to commit a sin, that sin can be placed back on to you. werewners of hobby lobby allowed to not provide contraception. how does that fit in with the concept of the judge as an umpire? surely, if you have five justices who believe, for example, a portion is a sin -- if they make a decision that says abortion can be legal, under that same. of complicity, they are getting themselves. can they really be expected to make a decision as the umpire?

andhey are turning around are on record as saying, that would be sinful? >>? anybody? you spoke about that a little bit. >> i'm not an expert on catholic doctrine. i cannot answer that question. one benefit you could say that the catholic church has. believe in a general confidence between faith and reason.law, from that perspective, they might come to a view that one might call a sin. but they will see it as an aspect of natural law, reason, which is a public discourse open to everyone.

>> anybody else? say, i don't think the court was necessarily advocating that as their own view about their own role in complicity. rather, whether they were accepting that view as advance and the parties of the case. >> to my mind, the theoretical problem with hobby lobby is the court possible inability to therate the entity or corporation, which is totally artificial to read -- totally artificial. it is set up for one purpose which is to make money. to reward stockholders.

these were private corporations. they were nonetheless creatures of state law, created not for the purpose of propagating a religion. the families who own those two businesses argue they have run their business in a religious faithys more about their 'sen about the corporation capacity to have a faith. you seen ames have corporation get down on its knees and pray? i have never observed that. that was the theoretical problem. the court could not see the distinction between the owners and the corporation who read -- the corporation. undertaken to express their faith through the corporation. it was no more and less than a

private is this entity -- business entity. >> the court was interpreting the religious freedom restoration act in that entity, which was an act passed by congress in reaction to a supreme court decision that did not give with the congress that was proper protection to people's religious believes. by congress passed a law both sides, liberals and conservatives. they came together to really bestow great protection for people's believes -- religious .elieves more than they thought was in the first amendment. i think it is important to think realize that was what the court was looking at. >> the court was looking at a in that statute,

which is person. the question is, is a corporation a person? capable of experiencing religious freedom? >> i know nothing about the evangelical doctrine. a jewish law, the owner of private corporation is responsible for the sins of the corporation. cannot profit from quote sinful acts. it is not just like some sort of strange view they have. in other religions as well. >> that person has a religious view. overboard want to go

here, but i think in jewish law, you cannot profit from the sale of uncool sure products -- un-kosher products. you cannot say, my corporation is doing that if it is a private corporation. it is not some set of weird view of the hobby lobby people. others would have that view. religions believe, the over to thearries private corporation. not to a public corporation. crocs just to finish on that. that shows the huge problem we have at the moment of bending over backwards to accept any religious belief as being sincere. saying,obby lobby providing insurance for contraception is a sin.

on the other hand, we had them investing $72 million in the very company that makes those products. we't that a problem, that except those police? >> we have lots more questions. maryland. -- marilyn. i say, there are five men that remind me of what used to be a nine man supreme court. manyot up to speed on how women are currently involved in covering the supreme court. the issueue respect, of decisions and decision-making by the supreme court, we have theird this evening on opinions on specific cases. my question is, what role do you all believe that religion plays

in their decision to your specific cases? -- hear specific cases? does, in your opinion, religion come to play? perhaps has anyone ever considered the red mass being inappropriate case to bring? let me parenthetically say, we are aware of many women who cover the supreme court. for a variety of reasons, none

out to where available. this is no reflection on the wonderful panel. been aave indeed terrific panel. i said it tongue-in-cheek. >> it is very hard for any of us to answer a question like that. it is such a secretive process in which the court decides which cases it will take. requires a vote of four justices to decide to take a case. rarely get any kind of idea as to what it was that caused them to take some case and not another. we witness that this term. that this term.

once in a while, a justice will -- meaning, here is why we think we should have taken this case. sometimes it is a signal for the next person that we would be interested in it if we can make it fit this category. i think it is tough for anyone to say why the court has taken a case or not. >> i would say that it is a court that is increasingly comfortable with the presence of religion in the town square, public square--- life. that is why they took the town of greece decision. is that because of their own religious views? nobody can say yes for sure. it is hard to think it is not. that their acceptance of

religion in the town square is not a reflection of their religious views. is there a direct cause and effect? i don't to get anybody can say. is,nother way to say this if the court had eight yes, they might not taken the case. atheists, they might not have taken the case. we have a court that is comfortable believes there is no problem in religion playing a greater role in the public life. i think that has been a significant change in recent years. as far as the case of the red mass, i don't think that would make it to the supreme court. i don't the would make it past summary dismissal.

it is not state action. attendance is not obligatory. they can hold the red mass anytime pleases. i would say one thing. being morelk about with religion in the public square, one thing that has struck me is there is a tendency to see what one might the government as religion -- one might think of as religion, as general custom. take the menorah. like,re approved -- it is

how can you say the menorah is just a cultural thing. which thereays in was more religion in the public square and the court is theortable with it is by devaluing -- secularizing of the religion. it now constitutes a generic religiosity. -- thatwant to go into may explain some of the what you might call relaxation. >> another question. my the context of --

proposal, i like to hear comments on my proposal. having people who are swearing into this office of congress or the supreme court, the presidency, swear on the constitution institute of a religious document such as the -- instead of a religious document such as the bible. was quoted as saying you put your hand on the bible and swear to uphold the constitution, that the other way around? anybody want to talk about this? >> you don't need a bible, you can use it for ron. a koran or whatever your meaningful text is. you could use a secular humanist

document. >> for somebody who is in give me aevelry, manual of how you calculate the stars. i would swear to almost anything on that. justices should be in the vanguard of a cultural particular bring a nonreligious or religious perspective into public life. if there is anything that has been secularized, it is the use of the bible as a platform for public of taking. -- oath taking. ofstrikes me as being devoid anything other than symbolism.

it is hard to take it seriously as a religious indulgence. it just happened that away. the first president who refused to do that is likely to not be reelected. , rightly or wrongly, still thinks of itself as a christian nation. of aur question reminds me small way in which religion does make a difference on the supreme court. when you become a member of the supreme court bar, traditionally you would get a certificate that says you are sworn in on may 4. 14 year of our lord, pretty 2014. -- saidginsburg says it

she had heard from the docks jews that the year of the lord was not something they wanted on their certificates. .t was offensive to them she said later on a another justice said, it was good enough brandeis. she put up her hand and said, it is not good enough for ginsburg. the court changed their view. it is now an option for members of the bar. not to have that phrase. >> mitchell. recovering and retired litigator. we have not talked about specifics. i want to give you an opportunity to talk about one. i have heard it said that justice scalia exhibits his

catholicism in what is perceived as his greater deference to religious organizations then individuals. two large groups rather than small ones. the accusations is this is differencecatholic rather than protestant emphasis on individual conscience. i would like your response to this. what does it say about our society that the response of a great many people out there, especially among the younger generation, to the idea of the ho-hum? a i guess i would say that is a good thing. it is not seen as much of an issue. it is probably a healthy thing for everyone that there is not

, these seats should be distributed on some sort of religious basis. i think it is seen as an interesting fact that there is not a protestant on the court, for the first time ever. i'm not sure people think that or at least if it is it has not been communicated to me in a way other issues about the court are. from readers and the people. i'm not sure what you mean in the first part of your question religious people or organizations. that in his judicial

activity -- >> that is an observation made by more people than just me. >> personal? >> his judicial opinions reflect that. >> i'm not sure that is true. on the last point you made, organizations,e it is true in this myth case, they said if there was a secular reason to restrict religion, it is ok if an individual's religious beliefs are curtailed. congress can change that. it is true congress to change that for larger religions. that is called democracy. congress would be more likely to make rules -- >> does democracy require that

personal freedoms be subject to majority vote? >> that is a bigger question -- >> we have more questions. we make it through them if the them get to elaborate? elaborate. >> first. >> all right. >> you have a question? i am wondering if you can address the issue whether judges in the supreme court or local thet, whether they uphold constitution. they are inconsistent. they don't really explain the reasoning, rather than say, it is just religious.

the religious groups or churches influence the number of voters. all they have to ask is, if you do not support abortion -- >> the question is -- >> let me responded this way. if there is one accusation that cannot be made about the supreme court of the u.s. does not explain itself. the supreme court explains itself much better than any other institution of the national government. it may be that people don't read the opinions in the close way they do read something that ted cruz has said. [laughter] or paul ryan.

one of those wise members of the legislative body. the supreme court does explain itself. the materials with which it works are public materials, almost entirely. the last time i remember, the supreme court dealt with a case in secret was the pentagon in 1971.se the supreme court deals with business that comes in the front door and goes back out the front door. -- incorrect to say they do not explain themselves. graduate ofsh and a harvard law school. i guess that makes me a supreme ended 84 supreme court justice. a prime candidate to be

a supreme court justice. entitled, article "isn't it time for a jewish justice?" it seems we have had an embarrassment of riches for jews and catholics. there are six graduates of harvard law school and three of the ale. -- of yield. -- yale. this begins to raise the question of diversity in every sense of the word. very few of the justices have been in private practice. tell story of how justice marshall could relate his life and so on. is, what do you think about the urgency of trying to encourage more diversity in the court? >> i must correct you on one

thing. we just had this mistake in the washington post. i have been hearing about it for the last two days. there are only five graduates of harvard. justice ginsburg's degree came columbia after she spent two years in harvard. event inhomas, at an e, that is the one he picked out as a problem for diversity. lawe are a lot of great schools not represented on the court. i cannot explain to you why it is this way right now. except perhaps, you have very ambitious people who go to ale.ard and y6ale ♪

people who are thinking this is a goal for them. presidents pick nominees, it helps to say, this person went to one of those law schools. i don't think it matters much that they are from those schools. you do have a point in terms of different life experiences. a greato'connor, put deal of her political experience in the court. that is true people in private practice. people from civil rights backgrounds. are relevant questions. i'm not sure the fact they all eliteo a beat schools --

schools. one was a sharecropper upon son. -- sharecropper's son. others were immigrant children. it is not just the elite backgrounds. >> you may remember that president nixon tried to put someone on the court. when the man was defeated because he was demonstrably unqualified to sit on any nebraska senator from commented, everybody is entitled to representation on court, even mediocre people. mediocre people don't get into harvard and yale. i think when politicians go looking for people to nominate, they have some stars in their schools.t the elite

they seldom get beyond that. i am wondering if you guys see any cases coming down the pipeline where there could be a conflict between religion and secularism. >> i don't know. fare has been one case so which has been about religious accommodation. the length of a present our's weird. arkansas has to accommodate a muslim prisoner who wants to grow a beard because his religion dictates that. it was an interesting case. , unlike some of

the ones we had last term, theo obama administration was on the same side as conservative groups supporting the prisoner. this one did not seem it was going to be as tough as other cases had been. >> later in the term, we are going to have the sequels to involvebby which do not private business corporations but involve nonprofits. if hobby lobby was in some ways a test of sect carrion organization, we could see that were thethose cases -- organizations are more distinct the religious and character.

question? i think we will get everyone. i am a patent attorney. my question is about -- i was thinking about how he wrote an article 23 some years ago about having jews on the supreme court. i would love to see muslim justices sometime. muslim american justices that nationalp with security issues. i wanted to get your insights about how far out you see that happening. we could make a very bad joke and say if present obama became a supreme court justice -- [laughter] i was hoping to ask the panel that question myself. i'm glad it came up. >> let me put in my view.

there is a tragic amount of bigotry about people of the muslim faith. originated ony september 11. throughout public policy. people at treat the is nothingbay, cuba, less than despicable. maintaining guantanamo is no different than what we did in world war ii in maintaining the concentration camps for japanese-americans. that is all driven by a suspicion of the muslim faith. when you see legislatures like those in texas passing laws that say,