to by trial and error. that contributes to this roller coaster kind of experience that we watch his parents. >> tonight at it :00 p.m. eastern and pacific on q&a. >> a bipartisan policy center will hear from thom tillis from north carolina tomorrow. he will talk about his experience in state government his recent election to the u.s. senate, and what he hopes the new congress can publish in the your head. senator tillis serves on five congressional committees including armed services veteran affairs, and judiciary. watch c-span live at noon eastern on c-span three. >> the second court of appeals recently considered a case challenging the health care laws contraceptive mandate for religious affiliated employers. the roman catholic archdiocese is arguing that the opt out

still violates their religious belief by making them complicit in providing coverage to a third-party. this oral argument is 45 minutes. >> >> they have all rejected the same claim. the religious exercise is substantially burden combination that allows them to opt out of providing contraceptive coverage and instead require an incentivize third parties to step in and by the coverage. as the d.c. circuit recently explained, the objectives here are the government's independent axes them everything coverage. >> can i ask a question about the exemption which art exists for religious institutions? i just want to know how it is working. how do those employees get contraceptive coverage if they wanted?

>> the employer says that -- the employees of religious employers are not currently receiving coverage under these regulations . we have planned to expectedly exempt those that would receive coverage. >> so the institution is exempt, their employees don't get covered at all? >> under the religious employer exemption that exist, that is based upon this for churches and the provision and the internal revenue code that defines houses of worship and their

integration. >> so they don't get coverage. ok, so this includes employers that work for this with a special solicitude do not get coverage of all and that it doesn't always work for those with these institutions? is that one of the reasons? >> that is one of the reasons, however the exemption for churches is a long-standing exemption with numerous statutory provisions including in the internal revenue code churches are exempt from property taxes and filing informational tax returns and the religious employer exemption's here cross-references the internal revenue service code. >> so if an employer wants coverage of this important service from an exempt institution, is there any method by which they could get it? >> the employee could independently seek out contraceptive coverage, but would not have it available without cost-sharing under these regulations, which is why it is so critical that the

accommodations that are in place here for plaintiff to take advantage of, they expected this religious liberty by allowing them to opt out and allow them to effectively exempt so that they are so pervaded from the provision of contraceptive coverage to which they object, and also ensures that their employees get that contraceptive coverage without cost sharing. the supreme court and hobby lobby emphasize the importance under the accommodations of making sure that employees refuse coverage with the effect on the employees of these institutions was precisely zero under these opt out accommodations, that there would not be additional administrative or logistical burdens. it is important to emphasize the opt out accommodations that exist in order to respect the religious liberties of these plaintiffs and relieve them of any substantial burdens. >> i am sorry for interrupting

how does the court determine when a burden on religious exercise is substantial or somewhere in between? what is the role of the court here and how do we understand what we are supposed to be doing here and have a opt out cannot be part of this. >> certainly, you honor, the d.c. circuit's decision makes clear that there is a role to play. they are not rubberstamping the request of the point if and to cloak religious judgment over the entirety of the substantial burden inquiries insubstantiality helps as well. >> had you define whether a burden is substantial? >> a burden is not stand sure if

what the plaintiffs are objecting to our the independent actions of the government and third-party. >> if this is substantial, and hobby lobby tells us that we have to defer to the beliefs of the objector. >> the government here does not contest the sincerity of religious beliefs, but, again as the dc circuit made clear, there is a role for the court to play in evaluating the nature of the asserted burden. in this case the plaintiff did not object to identifying themselves as having religious objections to the provision of contraceptive coverage. they presumably do not object to notifying the third-party administrator or under the revised accommodations that they have such an objection. what they were objecting to is that once they provided that notice, the government stepped in and assure debt it was filled by incentivizing this. >> they are complicit in providing contraceptive coverage that goes against their

religious beliefs. >> they do make that argument. the regulations make clear that there is a separation between these plaintiffs and the provision. >> that the belief is a misunderstanding of the process, is that your argument? >> our argument is that there is no substantial burden under this because of regulation separates the funds that are used in this way. >> you are saying that they are mistaken that this is a substantial burden. they are just mistaken? is that what you're saying? >> with the government has argued is that there is a role for the court to play in determining what the burden actually is and how substantial it is. and how substantial it is. that's what the d.c. circuits have undertaken an analysis. in this includes what the regulations actually provide keeping in mind that they have

an opt out and the accommodation exists so that they can separate themselves from the provision of contraceptive coverage and it is important to realize. >> >> it is an essential part of your argument, if i understand it? the question of whether or not the burden is substantial to the court. were it otherwise there will be nothing that the government could prescribe in such a program that wouldn't be defeated by the affected person saying that i object to it, my simple statement that i object to it which will bring in to play the government making this available to other methods. my statement is a substantial burden and the court doesn't

have to accept that. >> counsel, how do you square that with the language hobby lobby, it is not for us to speak about the court, to talk about this being insubstantial and instead our narrow function in this context is to determine whether the line drawn reflect an honest conviction and there is no doubt that it does. that is what hobby lobby teach us in the circuit court. as long as they truly believe that they are complicit if they go through this process we have , to accept it. how could that be right? >> the plaintiff and hobby lobby were under a different situation than this. they were planning under the mandate to provide this coverage to which they objected. when it comes to hobby lobby

, it is based on the facts. >> ok, so they got the accommodation that the plaintiffs are asking for. >> yes. >> furthermore, the statement that the judge has read did not address the issue of burden and the substantiality of the burden . it addressed the sincerity or importance of the believe. excepting the sincerity and importance to the plaintiffs of the believe simply does not address the question whether the burden imposed on them by saying that i object, is a substantial burden. >> the government has not questioned the sincerity. that does not mean that there is not an inquiry as to whether the burden under the opt out accommodation is substantial. as your honor noted earlier the government, in order to accommodate religious liberties must be allowed and the supreme court and hobby lobby made clear

that they rely extensively on the accommodation that is available to plaintiffs here. that did two things, respected liberty, while at the same time ensuring that the government was able to -- >> that is a substantial burden, and the lower court accepts that. how do you respond to that? >> we are going to see that they had an objection to pot in turn provide this coverage and then provide either the third-party administrative organizations or their amount of information that the government needs in order to meet our compelling interests in stepping in to fill in the gaps that are created when the plaintiffs opt out of providing this coverage area.

>> so being asked merely to raise her hand is not a substantial burden? >> it would be the equivalent of the plaintiff and, saying, i don't want to work on the munitions line, but a not going to tell anybody that i don't want to work on the line. i'm merely going to work this way. this is how accommodations opt out works is that the plaintiffs have to identify themselves and that is what they have been apt -- asked to do. >> is substantial burden the end of the line or is it can it understand that it is outweighed by the importance of the government interest? >> that is certainly correct even if, even if the burden was

substantial, which we have argued that it is not on the dc circuit, many other circuits have found this, but the government has established in ensuring that women refuse the important health care benefit and equal access to contraceptives for those whose employers object and for those whose individuals did not object. it is showing that we establish this compelling interest standard and there is an accommodation that is an alternative available to the government to satisfy the important interests in ensuring that women receive contraceptive coverage. >> i would like to start, if i may, with this discussion, that did indeed establish substantial

burden. and that includes insurance coverage that would provide. the government said that it is too attenuated of a connection because what needs to happen in order for this to be providing the circumstance is an actual individual needs to make an independent choice to avail herself of this service. it was in the very quote that your honor red from where the supreme court said that we are not in the business of a value weighting that difficult and philosophical issue as to whether by providing coverage the plaintiffs were thereby violate their religious beliefs. >> let me follow up on that we

also mentioned that those in the plaintiffs had asked about the conscientious objective and it is actually uniform before the dc circuit and you and your colleagues argue that a court must nevertheless apprenticed the mistaken beliefs that he is substantially burden. would you give the same argument and the same answer here today? >> i think that this is a way that is particularly apt, that the plaintiff decided was consistence consistent with his beliefs. but it's not are we ruled to question that but it makes us complicit.

>> even if he is mistaken? >> that is my question. >> it is a violation of tablet teaching and it was a violation of catholic leaves because it would thereby make us complicit. >> if your clients don't want to raise their hands to say that we want this exemption, how does the government know that they want it? >> the government should know not be able to ask us for that information. >> how does one implement this.

it seems to me your objection is to your employees being provided with this coverage at all. >> i mean, how -- how -- the insurers and the government cannot read your mind. so how do they know that you want this exemption? >> it is the fact that by executing the self certification or during the notification the government is , constricting the third-party administrator, prior to the regime our clients would with tpa's not to provide this coverage. but now the tpas will be authorized to provide the information and they have to go through this. so the fact that they are using this and interfering with armor analogy is violating this practice. so doesn't involve actually

forcing on ministers to provide a way. >> you have no objection to identifying yourself as an institution that is seeking the exemption? >> no, we do not. >> it is the whole opt out terminology. to identify ourselves, we do not object it. >> what about the government using tax coverage records? >> that may be a different question. >> i do not know the answer and i'm not a theologian and i cannot answer that question. and we don't want to be

complicit in the scheme. that probably would make is complicit. >> your are applying your analysis to other cases. suppose that the entity in your position, your client physician, objected not only to -- on sincere religious grounds, not only to contraception provision, but to all medical provision it offends god to give medical treatment. it would work the same way right? the statute provided that the person merely needs to identify itself and say that it has this objection and that will bring into play the mechanism that provides the medical coverage otherwise. that person is in the same position as you and it offends

to oblige that entity to say that we object to providing medical coverage. >> if i can add two things to that, if i can say about the amish parents that objected to providing a high school education, the court there said that their beliefs would trump the states interest in providing a high school education. there may be some questions in the statements that you're on her raises, using these restricted means, but in terms of this burden increase, if it is sincere and we could have challenged. it did not do that here. for good reasons. but the supreme court says you can't challenge the belief. >> if the belief is sincere, the

court has to accept it, but the government can challenge whether it is sincere. >> it seems to me that you are conflating the sincerity of the police with whether or not the burgeoning -- burden is substantial. they are not the same question. why you may say, and correctly so, that the hobby lobby case was involved in similar questions, the sentence that the judge read did not address, if i heard it correctly, did not address the question whether the burden was substantial. it addressed whether the belief is sincere or the person really does have a religious objection, it's not the same thing. >> the court was addressing the belief in the con text of a court analysis. step one of that analysis. step two, you have to identify

whether there is substantial pressure. nonetheless, the sentence, the words that red, did not address the issue of whether this is substantial the burden of inquiry. were talking about another aspect. >> that part of the opinion -- >> why would we even have substantial burden in the test if all the persons whose burden says that substantial and that makes it as a matter of law substantial, there is no test. >> the substantial part of that question is i submit quite easy here, because the penalty for us not complying with the mandate is crippling fines. there is a quibbling about the amount of the fine, for these plaintiffs and nonprofits, those would be crippling, putting them out of the nonprofit business.

if a religious adherent in one of the cases was forced to go around the corner to do something that he wants to do in a public display. that might not be substantial. this is unquestionably substantial. the government is litigating -- >> the issue to which substantiality applies as whether or not it is a substantial burden to fill out a form and say that we object. and the question is whether that was a substantial burden. >> the question is we are being made to violate the religious beliefs because we believe that this makes us complicit with a scheme that violates our belief .

that is respectfully what the court has alluded to before and hobby lobby results, has to accept. >> a moment ago you told me you would not object to filling out some sort of form to opt out as long as you didn't have to go through your own tba. isn't that what we discussed? >> yes, we did. >> as long as you have tpas, and you never negotiated with the tpa, you would find this an acceptable burden? >> it is really quite distinguish right here, that the government takes these now and now we say we don't want to you to provide the coverage and

the government has no implement a scheme where i believe they haven't said that we can contract this and have them not provide the service, the government intends to provide these services and to get in the way of the ability. >> you wouldn't mind if the government talks to your tpas as long as you don't talk to them. is that correct? someone has to administer that so as long as you didn't have to have a conversation with your tpas, you would not object then to letting them know that you wanted to take advantage of this accommodation. is that correct? >> they now have to do it. or at least the tpas may have to avail themselves of it. >> one of them has said that they got no extraction from you

at all. >> self certification operates as an instruction to the tpa. >> the reasoning of wheaton college that says you have to use the form, you can write your own letter, it you can do it in your own words why does that reasoning control here? >> in the wheaton college case there was the wheaton college injunction that did not make clear as the regulations do the effect of the notice is that the government well require this tba injunction >> hold on when i am speaking,

policeplease. we believe that this is wrong, we don't want to be thinking is wrong. >> i don't want there to be an overly terse answer, but that is the end of the inquiry of the court. we can debate whether that is correct and logical, but that is the legal analysis. we believe it makes us complicit and in the absence of a challenge here, the court has to accept that. the consequences really talking about this being complicit. >> perhaps we have to accept that it is complicit, but do we have to agree that it is substantial? >> i think you do if only on the

facts and by the virtue -- >> we hope to avoid the fines by submitting a letter. the submission of a letter that says we object. is that a substantial burden? >> that's a nexus size of our religious practice in a way that it is the same that the hobby lobby plaintiffs said. >> there's no extension -- exemption. obviously, it's not a ruling, but the way it is written, it seems to say here is a way you can do it without a substantial burden, due at the nonprofit way. >> this belief which implicates him difficult moral question of

philosophy makes it wrong for a person to perform an act that is wrong itself but has the effect of enabling or facilitating a moral act by another. hobby lobby address it the least restrictive means. the government here has not even made a try at showing. >> if i can summarize your argument, the role of the court is not to judge substantiality, but sincerity. by what standard would we judge sincerity. do we have a meter that could go from sincere to not sincere? >> it is not an issue before the court. you have to invite a weight whether there is a substantial burden on our religious exercise .

hobby lobby may have told us that our job is not to judge the substantiality but you tell us that our job is to judge the sincerity and our job is over. >> the court articulated the standard in tillman. substantial pressure is -- what does the government due to reports you to refrain from largest exercise or modify it in some way? our exercise here is that we think it is immoral to execute self certification and be complicit. what are the consequences? we get find. that is part of it. i do not think the government has an argument that a substantial. >> i want to make sure i understand our earlier discussion about