confidence and we could move forward. >> [indiscernible] governor pence: i think a number of the 30 states that have the standards are in the same position indiana is in and the federal government is in in terms of protected status. let me say with great respect i think that is a separate issue. it is not my position. i am not advocating for it. i understand some people are. that is a separate question that should be considered separate from this idea of religious liberty and that we will give our courts in indiana the ability to discern with the

highest level of certainty with people of our state believe government action has intruded upon their religious liberty. right here. she is right here. >> [indiscernible] governor pence: why is it contained? >> [inaudible] governor pence: you would have to talk to the indiana general assembly. i am pleased to answer the legislative history question. i believe it would be good to make it clear that businesses do not have the right to deny services to anyone. how about you? go ahead.

>> should it be legal in indiana to discriminate against gays? governor pence: i don't believe or support in discrimination against gays or lesbians or anyone else. i abhor discrimination. i want to say this -- no one should be harassed or mistreated because of who they are, who they love or what they believe. i believe it with all my heart. this issue of discrimination has been an anthem throughout my life. i started out in politics as a democrat in high school. i was the youth democratic

party coordinator in my hometown. the reverend dr. martin luther king jr. was one of my heroes in my youth and to this day. five years ago, john lewis approached me on the floor and asked if i would co-host the annual pilgrimage to selma. it was one of the greatest honors i had. we felt so strongly about it that not only did my wife go with me, but our three teenage kids went with us. it was the 45th anniversary. the night before in montgomery we sat in dr. king's church. we talked to people who were there. we were deeply moved by the courage and the faith of the people that were there. i was walking across the bridge

with john lewis. that is probably what has been most grievous about the debate. i'm very typical in indiana. hoosiers are a loving, kind, generous, decent and tolerant people. we are known all over the world for that and i'm just one of them. and so, the suggestion that because we passed a law to strengthen the foundation of religious liberty in our state courts, that we had in some way created a license to discriminate is deeply offensive to me and millions of hoosiers. we will correct it and move forward. >> [inaudible]

governor pence: the difference in what? >> the businesses are not following the reports on twitter. governor pence: i don't want to talk about private conversations or interactions. i think we all understand this is a perception problem and we need to deal with it because it is the right thing to do, and so everyone around the country and the world knows indiana is a welcoming place to everybody. i agree. we have to correct that perception. the whole debate of how we got here -- we are where we are. as ceo of the state of indiana i'm determined to bring people

together to figure it out and move forward. yes? >> do you personally believe -- marriage should be compelled whether it is photography or baking, across the board. governor pence: this law does not give a license to discriminate, to deny services. >> i understand, but you personally. we all know how things have changed. you personally, do you think that -- good thinking people

should have the right to deny services. governor pence: i don't support discrimination against anyone. the question that you posed though, i believe -- we are dealing in a free society with a careful balancing of interest. the facts and circumstances of each case determined the outcome. what this legislation does, what it did when president clinton signed it into law in 1993, and what it served in some 30 states is provide a framework for determining whether or not government action puts a substantial burden on a person's religious liberty. it is counterbalanced against whether there is a compelling interest.

first, in any case, does the government action place a substantial burden on the freedom of religion? under this standard, the next question is is there a compelling state interest? what courts have found without exception over the last 20 plus years is that the state has a compelling interest in combating discrimination. i support that interpretation. ok? the last one. >> [inaudible] governor pence: the conversations have just been ongoing, candid. we have been listening, sharing facts about this law and our determination to step forward and provide the kind of solution

that will allay the concerns and correct the misperception. there have been a lot of ideas shared. as i said, i don't believe for one minute that it was the intention of the general assembly to create a license to discriminate or to deny services to anyone in our state by this legislation. it was not my intention. i have made it clear to those businesses that we will take such action as necessary to correct that misperception and move our state forward. ok? thank you all. thank you all very much. >> john zody is the chair of the indiana democratic party. thank you for being with us. mr. zody: you about a chance to hear what governor pence said earlier today. what is your reaction?

mr. zody: i think the first rule is do no harm. the governor spoke to the media this morning after going on witha talk show on sunday and really not answering a very important question about whether all hoosiers need protection. he said that was not in his agenda. he signed this bill into law last thursday, we have had great economic harm. employers, universities, nonprofits, the ncaa, nascar has expressed great concern about this new law so i think there has been harm done inand i don't think the governor answered the question. >> he was asked if they force in indiana could deny business to a gay couple and he said no. mr. zody: right. what the law does -- that is where the question is. he answered the question in a certain way.

he pointed out to say i abhor discrimination. we will take the governor's word. but, he is not the governor of mike pence, he is the governor of indiana and he needs to make sure all people he represents are protected. when he says a store owner is not able to refuse a gay couple, the people who pushed this log is a great. -- law disagree. unless you are willing to fix the law that does protect everyone, you are not really fixing it at all. there are a lot of things that can be done to fix it. >> can republicans clarify or fix it? what are you looking for specifically? mr. zody: they have said they want the bill clarified. they are talking about what they might do. democrats had a number of amendments three weeks ago when this bill was moving its way through the general assembly, indiana democrats in the house and senate had amendments that would have offered these

protections and they were defeated along partyline votes and ignored basically without debate. so now democrats, after the governor's terrible performance on sunday and not answering questions repeatedly, our democratic leaders in the indiana house and senate came up with a plan yesterday while republicans were talking about this -- democrats said repeal the law or fix it in a way that protects all hoosiers. that is including sexual orientation as a protective class. those are two possible fixes. there are number of others that people are talking about. we have not seen clear language from the governor or the republican super majority. >> we are talking to john zody. why is -- is indiana's law any different from the books in 19 other states? mr. zody: it is different. the governor shamelessly dropped

barack obama's name and bill clinton's name to try to soften the blow of this crisis that we are in. the law that then senator obama voted for in illinois as a state senator was different because illinois has different protections. the law that bill clinton signed into law 20 years ago -- we are in a much different place culturally 20 years ago -- the indiana law is broader. when something is broader, there are more questions. one of the major questions with this that even with places that have local protection for sexual orientation as a protected class -- for instance, the state capital in indianapolis has an ordinance of that has sexual orientation as a protected class. when the law is that broad, if frozen to the question whether that ordinance would be absurd under this law. that is a question. a lot of the concern comes when that ambiguity that is not being

clarified. >> you issued a statement that the law is created "an economic and social mess." how so? mr. zody: we are in the estimation of hundreds of millions of dollars of impact of possible economic impact that could be leaving the state of not coming here. -- or not coming here. indianapolis's largest convention -- a $200 million economic impact. a company has foregone a $40 million expansion. the woman's convention is being moved. that is theoretically $100 million. all of these employers that have come out sent the governor a letter. indiana is a great place to live, work and raise a family. in most ways except when we are talking about not protecting everyone. when you have global employers

that are headquartered here in indiana or employers like the ncaa that host national conferences and events -- we are four days away from hosting the final 4 -- when you have people like that analyzing the law telling the governor that they are concerned about it and it hurts their efforts to recruit maintain and attract a diverse community, diverse workforce and diverse groups, i think that is something the governor really should have looked at and heeded before signing this bill and now we are in this situation. >> john zody is the chair of the state democratic party. thank you for being with us. mr. zody: thank you, steve. i appreciate it. >> coming up, the final debate between rahm emanuel and his challenger jesus garcia. from boston university law school, a discussion on antidiscrimination laws. later, another chance to see

mike pence's news conference on the state's new religious freedom law. on the next washington journal leo gerard discusses current trade policy negotiations and the reaction by unions. then the president of the american health policy institute talks about the need for republican alternatives to the affordable care act if this record rules against the administration. later, our spotlight on magazines features sam baker of the national journal on his piece examining indiana's new religious freedom law. washington journal is live every morning at 7 a.m. eastern and you can join the conversation with your calls and your comments on facebook and twitter. wednesday, the alliance for health reform and the kaiser family foundation teamed up for

a discussion on health care costs. topics include the impact of private health insurance medicare and hospital care on long-range health spending. you can see it live at noon eastern on c-span. >> the most memorable moment was hearing senator cory gardner saying you need to be firm in your principles but flexible in the details because i think it really reflects the heart full we are seeing across the country and the methodology that if all senators, all the congressmen and women and the state legislatures could adopt we can come together as a country and solve many of our pertinent issues. >> my favorite coat came from julie adams, the secretary of the senate. she said remember to be humble and have a strong work ethic because the people you meet on the way up, you will meet them on the way down. >> i think in particular in congress, we have a lack of true

statesman. as much as a may disagree with them, senator john mccain did something really impressive last year. he committed to the veterans affairs reform bill. reading the senate for to report and maintaining -- staying away from torture is essential to the character of our democracy. at the point where we have people willing to cross the aisle and make these decisions with people they don't agree with, that is what we need to maintain. the security, the integrity of our nation. >> high school students are generally rank academically in the top 1% of the state were in washington d.c. as part of the united states senate youth program. sunday night at eight eastern -- 8:00 eastern and pac ific. >> wttw in chicago is hosting tonight's chicago tonight forum with the two mayoral candidates. joining us on the phone is

perishables. -- paris schultz. >> we call it a forum instead of a debate because it is not about scoring points. it is about engaging the two candidates and getting specifics about their plans for the city going forward for the next four years. what we are going to do is -- what my colleague will be moderating -- we will give each candidate a good chunk of time to answer questions one-on-one. we will start with one candidate for about five to 10 minutes and then go to another candidate for five or 10 minutes. then we will sort of have a joint question session for the two of them. they will be going head to head and answering some of the same questions, but it is more a chance for viewers and residents of chicago to get

insight. it is for us to put them on the record to tell us what they plan to do over the next four years. >> for many watching the race outside of chicago i'm surprised the mayor was facing a runoff and the early polls showed it was a dead heat between mr. garcia and the mayor. a new poll shows this race has kind of opened up for the mayor. what has happened? mr. schultz: the mayor has spent a good amount of time on the airwaves through advertising both from his campaign and then pacs that are associated with him. really the bulk of that advertising has defined his opponent. garcia has limited legislative background. he was a city councilman and the state legislator. he heade dupd up a nonprofit.

the commercials have sought to paint a picture of who garcia is. rather than focus on his biography, it is focused on his words in previous forums and debates and press conferences. city finances are really the big issue. the city's bond rating was downgraded. the city has $7 billion in debt and pension liabilities that have accrued to $9 billion. those pensions are in perilous danger of going solvent. viewers voters what is the answers from these candidates as to how they will tackle the financial crisis. will it be more revenue? libby property taxes significant cuts in government service? and, both candidates really have failed to give realistic specifics, but especially candidate garcia. he said things like he would appoint the commission after he

is elected to look at new revenue options. the mayor has taken that, those statements and spun them around into commercials and sort have tried to portray garcia as someone who does not quite understand the graveness of the financial situation and is not have a realistic plan. according to the ads, this could spell doom in higher property taxes or sales taxes. that is not to say that is garcia's position but what the ads have done have been to underscore the lack of specifics that the garcia campaign -- the mayor's campaign is not offered many specifics of its own but it does have a record of four years of decisions made in finances and pensions, that it can point to.

i would attribute the change in the poll numbers to the flurry of advertising we have seen, most of it from the mayor's camp and groups associated with them. >> a week ago, this is chicago's first mayoral runoff. my question is voter turnout. what are you looking at? mr. schultz: we have seen record early voting turnout. early voting has only been in place for a handful of elections but we have shattered elections in terms of early voting. that could mean that voters are incredibly motivated. the initial election back in february, the turnout was fairly low -- between 30% to 35%. early voting does not meet voting overall turnout is going to be higher but it could mean people are voting now because they will be on spring break for vacation during the election and they want to get it over with now.

you could mean that both campaigns are doing a really good job getting the ground troops to turn out the vote. i think that what this election is coming down to is who mobilizes voters more. you have commissioner garcia that is heavily backed by the teachers union and other public employee unions. they do a really good job mobilizing ward by ward, precinct by precinct, getting people to the polls. the emanualel campaign has recognize they did not do a good job as they could have in the initial election so will they be able to turn out voters on election day? i predict the turnout is going to be higher than the 30% to 35% we saw on february 24. perhaps as close to 50% which would be a pretty decent turnout for a municipal election. but, again, early voting is way up. not necessarily an indication

that voting overall is going to be way up. >> paris schultz is the political reporter for wttw "chicago tonight" forum. thank you for your time. mr. schultz: good to be with you. >> chicago mayor rob emanuel and his challenger jesus garcia met for their final scheduled one-on-one debate before next week's runoff election. the debate comes as a recent poll finds the mayor leaving his challenger 58%-30 8% with 9%. the event is posted by wttw-tv and city club of chicago. it is about one hour. >> smart people may disagree about what makes a great city,

what makes chicago great is we don't have to agree. to run a city like ours, a lot of issues come up. the city club of chicago was a place to debate those issues and hear from the men and women who shaped the policies, lead the industry's and tell the stories that the fine art city. for the free and open exchange of ideas, the city club of chicago. moderator: good evening. it is a full hour tonight. ♪ moderator: the stakes in the mayoral election could hardly be higher. the bond rating teeters two notches above junk status.

the city faces pension debt and reliance on borrowing threatens every other function of government. the question tonight, what qualities the candidates for mayor have to change that. joining us, the city club is helping to underwrite tonight's forum. we are live streaming this on our website. welcome to our viewers around the country on c-span. our political reporter is tweeting. we invite you to join the online conversation. joining us are rahm emanuel, and jesus garcia. garcia. before we begin, tonight we are doing things differently. we will start by talking mainly about finances with each candidate individually without interruption from the other.

that will give the mayor and commissioner an opportunity to clearly answered the questions. then we will engage both on a range of topics. may your, your administration borrow for short-term expenditures. are you doing what got the city into trouble? mayor emanuel: what we are doing today is i have balanced for budgets. we are ending the gimmicks of the rainy day fund. more importantly, we have invested in our children. in addition to that, we have changed a lot of individual things that were inherited. we got here because politicians kicked the can down the road. >> let's talk about the future. you are in the process of borrowing this money. do you plan to borrow money to pay the $550 million due for

police and fire pensions? mayor emanuel: we have three pension agreements we have done. a balanced approach that asks a little of everybody. in 2011, the legislature passed a bill mandating property tax. i laid out a plan of how to get out of that. first and formost, where we disagree -- moderator: this is before the lynn noise supreme court. mayor emanuel: it is an approach just like the city approach. it spells out a way to avoid a property tax. first and foremost, a progressive sales tax. second, a chicago-based casino. that allows you reform revenue to avoid a property tax increase. and the differences that i

actually not allowing any reforms, saying they are off the table, you put the onus on taxpayers. i have given you a specific plan on how to avoid a property tax. moderator: the three items you mentioned are dependent on state action. what makes you think the state is going to come through on that? mayor emanuel: first the progressive sales tax which i have been enforcing. you are talking about income tax. it is what my opponent is for. it is viable today because the sales tax was designed 30 years ago. second, a chicago-based casino. they are talking about that as a revenue source. those revenue sources allow you to avoid a property tax

consistent with 40 years in which i have not raised property taxes. moderator: a casino, who would own it? mayor emanuel: chicago. i have been consistent. my opponent came out against the casino. i think a chicago-based casino is a revenue source dedicated to paying for police and fire pensions. depending on how you do it would raise additional resources. anywhere over the time of 10 years a billion dollars. moderator: $100 million a year. mayor emanuel: and you a progressive sales tax. the reason i am for reforms, part of this is you don't have to put the burden on taxpayers. when you have reform off the table, taxpayers and neighborhood services have to cut. moderator: back to the issue of the casino. who would regulate it?

mayor emanuel: chicago would own it. we would have a third-party operating in. would be looked over by the state board of ethics. the good news is the first time ever in 30 years i have passed in springfield and the governor vetoed it. it is viable. the one source, you can't rely not because it requires a constitutional amendment. we have been needs now. a balanced approach where everybody gets a little and nobody has to give too much is a distinction between my opponent and i wear i like the counting and like three pension agreements to work through and done a reform revenue model. it adds a balanced approach for everyone has to do a role to stabilize the fund. if you take reform off the table, there will be cut to police officers, tax increases

and there is a reason for taxpayers to bear the burden. one last point. our employees didn't cause this problem. our taxpayers didn't cause this problem. with politicians and bring to things that we couldn't afford. what i have worked at for four years just to work her way out of commitments made for people kick the can down the road and now we have gotten to a point where we have aries christ that i'm trying to work through that an end what has been 30 years of politics and getting us in a potential mess that is been around for career politicians. moderator: let's spend some time with the commissioner. it has to be a matter of shared sacrifice, including pension reform. mr. garcia: shared sacrifice will be something that we engage in. first, you have to make sure any reform you undertake is constitutional.

the bill that he passed through springfield is pending before the illinois rim court. the court will rule and then we will know. the legislature will act to provide relief toward the obligations we have. you cannot move it and risk the chance of it being struck down, which is likely to happen in illinois. moderator: say the supreme court surprises you and says those pension reforms that are in the law are excepted will, and we give it our blessing. would you implement those? mr. garcia: i would sit with those unions and talk about it. it would shed new light on the parameters. we would have a new guide to approach it. the problem with some of this is, and the question you asked is, more borrowing. visit administration is engaged in borrowing $1.9 billion.

almost $2 billion more than the previous administration borrow to in a 10 year period. this will end up children -- and how long the indebtedness was last. moderator: one last thing, -- mr. garcia: it has been used for short time purpose to provide some services that he has been talking about. that has been irresponsible and expensive. moderator: what are the non-springfield revenue proposes you have made is a luxury tax. mr. garcia: the purchase of luxury vehicles, boats, jewelry over $5,000. it generates a modest amount of dollars but it is a part of the mixed we're looking at. moderator: define a modest amount. mr. garcia: potentially between five and $10 million. it is one of the things that i

put out there. i support modernizing the sales tax in illinois. it is been around for a long time. it is geared toward goods. it is time to expand services. i'm glad to hear the mayor say he supports making progressive have been most of his measures for the past four years. it is regressive. that is how he has balanced the budget over the past four years. that is not sustainable. it is unfair. it needs to be progressive. he now agrees with me making the sales tax a progressive one. moderator: we are still at the commissioner. you have had one executive position in your career.

2.9 million. excuse me. you are right. [indiscernible] you said you left the nonprofit in the black yet tax returns for the year you left shows a deficit of $650,000. is that wrong? mr. garcia: you are missing apples and oranges. i said it was in good fiscal health. i grew up in a nine year. , from being one -- when i left it experienced a deficit which is not a dad. that changed after a couple of years. i secured additional funding coming to the organization. moderator: the two years before you left, the organization had a deficit of almost half $1 million. mr. garcia: you are mixing some

things up. it had a modest deficit. today it is one of -- moderator: we are talking about when you left. mr. garcia: a deficit is not a debt. it is an accounting procedure. the important thing is that the organization never had to borrow money, never used its line of credit. it never missed one payroll. it was in good financial health. use try to distort the record of a nonprofit. i don't know why he is doing it. the organization has a budget of $5 million. it is nationally renowned. moderator: it must be safe to assume that you have started to put some names together for your commission. who is going to be on it? mr. garcia: we have a variety of financial experts. we have labor unions. moderator: give me some examples of people whose names we may recognize? mr. garcia: professor jerry dutche, there are other people

like them -- representatives of labor. different labor unions. i'm not at liberty to give their names. moderator: what with the balance be between labor folks and nonlabor folks? mr. garcia: business people we are consulting with. when i am elected we will release their names. probably 12 people. moderator: let's open it to both of you. mayor emanuel: i brought that actual document. it was a deficit he left. he said he left it in black. when he said this is the operating budget, he overestimated it i-72 percent. if you're going to recruit businesses, jobs to the city of chicago, your veracity is counting on people to hang your hat on. a good organization that does good work that you can on a 2.7

million budget were off by 72% you actually left it in a deficit, and you claimed this organization is how you prove your management jobs is not going to be bringing confidence. mr. garcia: the organization is in solid financial health. they changed the reporting year. at the time i left. that is part of the reason. moderator: was it in the black when you left? mr. garcia: there was a deficit but no one missed a paycheck. no one was laid off. most nonprofits -- freddie mac paid a huge role. economists have pointed out during his tenure at freddie mac it was one of the situations

that began the great recession. [indiscernible] that is big. mayor emanuel: i served on the board in 2001. the recession happened in 2008. i want to clear it up. i do not cause the recession. [laughter] [applause] second, i knows nothing about recessions. which is why president obama asked me to be his chief of staff during one of the worst recessions. we worked our way through not only budgets without a property tax, and now chicago's number one with families moving in. [applause] mr. garcia: chicago has had one of the slowest recoveries of the top five cities in the country. we are third.

we have come in number eight in terms of recovery since the great recession. he touts -- international tourism has expanded. it has it. we lag behind most cities in the country. he likes to paint a rosy picture. the organization after i left it created an award in my name as an honor to the service i provided to it. today people come to work and look at the organization. mayor emanuel: it does good work. that is not the point. you claim as your veracity as a manager of a $2.7 million organization a 10th of a we do for afterschool programs, is your credential to be the mayor of a $6 billion organization. you underestimated the budget by 72%.

mr. garcia: that is peanuts. with the mayor is leaving the city of chicago, a projected deficit for next year of $432 million. growing almost six million the following year. moderator: gentlemen let's move on. let's talk about the future. specifically in terms of additional revenue the city will need. isn't it fair to say both of you know what will have to be done in terms of property taxes. but you just don't want to give the voters the bad news before the election. mayor emanuel: this is where we differ. i presented for budgets in a row without a property tax increase. i put money in the rainy day fund and invested in our kids. three separate pension agreements that stabilize them without a property tax increase. as a relates to the next to

pension agreements, i laid out a plan without a property tax. you asked who is going to be on the commission and he told you he's going to point to the day after the election. mr. garcia: that is not true. i gave some names. mayor emanuel: quote, i'm not at liberty. moderator: to talk about the union memberships. mayor emanuel: here is what it is. by taking reform -- typical career politicians promising everything like on a hairy, then the taxpayers get the bill. moderator: commissioner, a question. is it fair to say you know what needs to be done but you are not telling voters what

needs to be done. mr. garcia: i don't know every thing that needs to be done. when i become mayor i am going to engage in audits of the city's finances. there has not been an independent audit. there is not been performance audits of the departments. those are not audits of the city's finances. those are reports on what has been spent. there are no audits made of the city of chicago's finances or any of the departments. mayor emanuel: one of the most premier accounting firms in the world, they do audits of chicago austin, major fortune 100,000 companies. every year they have to audit chicago's books.

the idea year running for mayor and can claim that they and the inspector general are in cahoots is ludicrous. you are running for mayor of the city. moderator: with respect you wrote a note op-ed say he was cooking his books. mr. garcia: i did. there is a veil of secrecy. you cannot get real information about where the revenues are going in the city of chicago. i want to open the books. before i can look a taxpayer in the eye and increase taxes on them, i want them to know what we have in the city of chicago. that hasn't occurred under this administration. there is a veil of secrecy. taxpayers need to know.

i will place that online. moderator: you said a major accounting firm of the world it and the inspector general, you said they cooked the books. mayor emanuel: have you call the u.s. attorney? that is a serious charge. on the information -- mr. garcia: it is in what taxpayers can -- [indiscernible] there hasn't been a performance audits. those are balanced statements that an accounting firm has to provide. they are not independent. i stand by that. moderator: gentlemen, let's move on. give us one new revenue idea we haven't heard yet that the city council and the mayor can enact

with no action from springfield. mr. garcia. mr. garcia: chicago at present, let me tell you, a lot of our taxpayer dollars have gone into the downtown area. please. you give them a lot of time. wealthy building owners in the downtown area, when they construct new buildings, higher politically had the law firms who have lots of clouds, and they go in to the board of appeals, and they received a medic reductions in the assessments of those buildings. the potential for recouping hundreds of millions of dollars by sending our corporation counsel to those hearings, and to intervene on behalf of taxpayers for buildings that have a significant value could yield a lot of money to

citizens. when they -- hundreds of millions of dollars. 11 buildings that were sold in the last year in the downtown could generate $100 million. [indiscernible] moderator: that says a good idea. mayor emanuel: we do collect taxes. when in fact the willis tower was sold, the city of chicago does receive a tremendous amount of money when one property goes to another. when they bought it is reflection of their confidence of the environment and job creation of the city. moderator: is it a fair assessment on which these taxes are based? mr. garcia: the empire state building, a similar mechanism generates 3-4 times the amount

property taxes than does the willis tower. mayor emanuel: on taxes here i have talked about one of the way to avoid property tax increase is a surplus. i talked about the casino, and even on this show, i talked about a progressive sales tax. the sales tax we have today is structured on the economy 30 years ago. expanding it, a single mother buying school supplies for her child as a sales tax. you join a club, you do not pay a sales tax. health clubs. very simple. i believe those services should be charged because they are more reflective of today's economy than 30 years ago. [laughter] moderator: let's move on to a

different topic. this is a viewer question. it has to do with the airport. you can't soundproof your yard your deck. soundproofing and noise monitors are a dodge to avoid dealing with the problem hundreds of loud and toxic polluting planes flying low over our once little communities. what do you say to those people who are suffering those effects? mayor emanuel: the resident is right. you can insulate homes. you can't insulate your how -- outside. the solution to this is getting the faa to be a study to have all hair -- o'hare have the runways used at appropriate times. the fda controls this which is why i have called upon them to

expedite it. it requires somebody less leadership to get the answer and solve the problem because too often only two parts of the runway, two communities are being rude -- used. the residents are right. you are impaired because of flight patterns. moderator: do you have a way for the faa to do something? mr. garcia: the first thing i may or should do is meet with individuals who have lived around the airport. i have done that. the area has been complaining about this. i went to one of their hearings. you can at least do that. why not go there and see for yourself? why not engage them? that is what a mayor should do. you may not be will to solve their concerns but i support keeping the old runways and the utilization of the new ones, and engaging in measures that would mitigate the noises they are

hearing. i will advocate for them. i will make the faa meet with them. that is being responsive and a good listener. moderator: speaking of the residences, we have some protesters. mayor emanuel: i feel at home now. moderator: you did not design the runways. why heaven you it lists -- at least met with people? mayor emanuel: i have met with them and with the alderman -- moderator: they claim you have not. who did you met with? mayor emanuel: i listen to what they want to do. that is what we did with the installation of homes. now i have written a letter to the faa to speed up the report so we can actually evenly take the runways, so no two

communities bear the brunt of the growth. it is not evenly felt across all areas. moderator: you met with the alderman. mayor emanuel: who represents the areas. i understand you can't use your backyard, you are not getting the full value of your home. moderator: what about meeting with them? mr. garcia: i met with them. mr. garcia:mayor emanuel: the hard part is getting the answer. that is what i am working on. mr. garcia: give them a half hour. this is their greatest investment. they deserve to be heard. mayor emanuel: when it came to meeting with people, we did that. when it came to closing the coal plant, i met with them, shut it down. the meetings with the faa -- mr. garcia: the coal plants

again. moderator: you asked me to ask about the coal plants. i will get back to on that. this is the second time the commissioner has expressed skepticism about your role in closing the coal plants. what did you mr. emanuel: they have been advocating for 20 years. a felt nobody was on the fifth floor was hearing them so i was listening, and they said we need to get this done because our kids are showing up in the hospital with asthma attacks. the difference was when they needed to get the job done and not just protest, they needed to close the plant and make progress. i called the ceo into my office and i said this can be easy or this can be hard. today in my tenure, an effort

finally got done because i opened up the floor and finish the job. moderator: surely you give the mayor credit for closing the deal. mr. garcia: i give the mayor credit for his reelection campaign. he came in and took credit for it. part of the reason the coal plants are going to close was because they were becoming uneconomical. there was a lot of advocacy -- the groups deserved all the credit. they worked on it for a long time. the community residents that is why they -- residents that is why they closed. moderator: quick response. mr. emanuel: two points. that was the price of natural

gas and when you are negotiating, you'd use that to leverage and the coal plant operator to shut down. the effort does go to the community groups but the difference is protesting is not the same as making progress. not only to shut the coal plant down but to open the park they wanted. that is how you invest in neighborhoods. moderator: the money came from the state. let's move on to the next topic. we have a viewer question. this is addressed to mayor emmanuel. many of your donors receive contracts from the city and are exempt from your new regulations. is inter-leadership compromised by the favors you go to these people? mr. emanuel: two points. first, it was during my tenure

that the stain was on chicago for its hiring practice, who you know not what you know. the federal oversight of our hiring strategy has ended. that ended under my watch. the 20 or process of federal oversight. that is a fundamental reform, where corruption used to occur. two, here are the three things i have told supporters you were wrong. by supporters -- we raised minimum wage by 40%. i have told the real estate development community -- you put $90 million into a fund for affordable units. i close the loophole that allowed companies to take luxury skyboxes in sporting facilities and they have to pay full rates.

when it can to asking mr. garcia -- where he disagreed, he couldn't name one donor. the family that had a no-bid contract is one of the biggest supporters. mr. garcia: one of the family members was standing right behind you at the election. one person wants to volunteer for me and that makes them a big donor? he has received, according to "forbes," from 600 vendors doing business $7 million. he has received over the past four years over $20 million from 100 donors.

they are rich and powerful. when you have forces like that involved in politics, what happens to the little guy, to taxpayers? they get shut out. you by the airways, you monopolize the discourse. he never thought we would be here tonight because he figured he would get reelected because he had all of those wealthy donors. it is bad for -- that is why voters voted for change. mr. emanuel: two things. you just called "the sun-times" liars. that family was thrown out of the airport for a no-bid sweetheart deal. i am proud that business and labor turn in support of my effort because they know the difference between an economy that is growing and one that is running up deficits.

when i came to office, there were three trains in the city of chicago. today there are 29 trains and everybody is going back to work. chicago was on the move again. i am proud of the fact that they know the difference between an economy growing and an economy without leadership. moderator: it was recently revealed that you received a donation from magic johnson after one of his companies got an $80 million contract. is that not another example of your contributors benefiting from a city deal? mr. emanuel: first of all, it was a competitive bid. and he gave $10 million for at-risk kids. kids who have never had an opportunity for a job or a mentor, getting an alternative. i am happy magic johnson solved the problem and was competitively bid. moderator: it has been called

pay to play politics. mr. garcia: it is as robust as ever. i had 6000 volunteers working in my campaign. he plugs one name who hasn't made any significant financial contributions to my campaign -- that is not paid to play. that is distorting. moderator: did he discuss potential contracts with you? mr. garcia: no. mr. emanuel: you still haven't -- that is what leadership requires. moderator: your son has been arrested numerous times and court records described him as a gang member. in 2013 he was charged with a felony for attacking an off-duty police officer. is he still a gang member? mr. garcia: i was and i live in

the neighborhood that has had its share of problems, including gang activity. my son grew up in that community. we tried to be as loving and as caring and are supportive of my son as possible. be made some mistakes and i am not proud of it. perhaps all lovely gave him wasn't enough. my son has learned from his mistakes. he has four children he is raising. the mentors kids in the community. he turned his life around and i'm proud of him. mr. garcia:moderator: is he still in a gang? mr. garcia: no. moderator: a lot of voters might wonder -- if you can't keep your own son out of the gang -- [booing] -- if you can't keep your own

son out of a gang how can you steer the city away from gangs? mr. garcia: it was growing up in a neighborhood that has had its share of gang violence that deepened my resolve and my wife's resolve to stay there, to work to improve the community to reduce gang violence. it was one of the highlights of my work. to date, people come from all over the country to look at the work the organization has done. moderator: that wasn't the question. mr. garcia: my son has only been convicted of two misdemeanors. what you are spreading is something that was published anecdotally in the newspaper. we did the best that we could for him. there are other things you don't know about my son. he has been a mentor with the ymca.

he has worked for cease-fire. he has meant toward kids in the neighborhood. he has also worked on trauma is use in this -- trauma issues in the city of chicago. [applause] moderator: i have happy to give you the opportunity to tell that story. let's get back to pay to play. one of chicago's leading law firms represented your son for a felony charge. you cosponsored a measure to get mayor brown the job of handling $100 million. why is that not payback for a freebie? mr. garcia: when my son received the services from the law firm, i didn't ask the law firm to provide them. it was a mutual friend who referred them. it was before i was elected to the board. he has known them since he was three. he went to them asking for advice on how to handle it.

i did not see any conflict of interest and to this day i don't see a conflict of interest. how much did the firm get? a miniscule amount for the work that they did. there was no reason for me to think there was a conflict of interest, or else i would have abstained. that has been my record of ethics and politics. [applause] moderator: mayor? all the city's borrowing goes through edinburg -- through ed burke. would you support him? one of you is going to be elected -- when you keep chairman burke? mr. emanuel: if he seeks reelection i will support the city council. moderator: why does he still has security detail? it is diminished but he still has a security detail.

mr. emanuel: we have made it smaller. we have cut back everybody's. moderator: it is still costing the city money. mr. emanuel: i have it, other individuals have it. there is no part of the budget that doesn't get reformed. everybody got cutbacks. in addition, his are no longer active policemen. they are retirees. moderator: commissioner, if you are elected mayor, would you keep and burke as chairman -- keep ed burke? mr. garcia: they will do that by a vote. moderator: your vote would be pretty big. mr. garcia: let me answer your question. context is important. in february, voters voted for change and that is why this gentleman is in the runoff. that is why 19 members of the city council are also been runoff.

to me, that is a strong message being sent to the mayor and the city council. we're going to have those conversations. moderator: are you suggesting there might be a change? mr. garcia: we will review the security detail of the alderman. the other thing i want to say is that part of the reason we have to do that is terrible management of city finances that resulted in five downgrades, including two at chicago public schools. we have to look at all the expenditures in the city of chicago, including those of the chicago city council. mr. emanuel: the bigger issue isn't him being chairman -- it is insurance as it relates to workers comp. second let's deal with the downgrade. moderator: get back to that. mr. emanuel: you can save a lot of money on workers comp and that is where we have been

saving money. moderator: a lot of people have no idea what ed burke does. mr. emanuel: let me get to the bigger point. that downgrade issue -- it very specifically points to public schools. in 1977, you cast a vote to allow them to skip payments to teachers pension. if you skip these payments, the pensions will create a financial mess. the probably have today -- your fingerprints are all over that shovel. that is what created the financial mess we have today. the downgrades weren't there in the last four years -- it took 30 years of politicians casting votes in springfield -- moderator: you talked about credibility. how about the credibility of

mov movody's? mr. emanuel: you don't believe the pension crisis -- you are not suggesting they have just emerged. it is years and years. that is the honest assessment. that is the first time cps started to skip payments, when he was in the state senate. it would create a financial mess. that is the problem we have today. moderator: what's moody says -- it is a projection of the future. mr. emanuel: and how we got to this mess -- was it overnight? i want to end of the dual taxation of chicago taxpayers. moderator: commissioner. mr. garcia: there is a long

history of financial mismanagement related to rahm emanuel. freddie mac was part of it. you can say i accused him of bringing out the great recession, but he was a rubberstamp on the board approving many decisions -- moderator: we were talking about bond ratings. you mentioned moody's. mr. garcia: they also did the most recent downgrading. he promised four years ago to fix finances and now he seeks to highlight a vote i took to deal with education and health care with a $30 billion budget. he claims that i ushered in the era of pension fund being out of whack. that is crazy. that is like me blaming him personally for the

recession. moderator: he does. mr. garcia: he said he would put the fiscal house in order and four years later we are in a much worse situation. chicago finances are among the worst in the country. mr. emanuel: you can attack -- you can attack me, but everyone knows the attacks on me are a smokescreen for the fact that you lack an agenda. what is happening here, the crisis on pensions didn't happen overnight. we inherited it on day one. we have rolled up our sleeves and cut the structural deficit. . the gimmicks of taking money out of rainy day funds and that is why businesses and jobs are finally coming back to the city. if you go back to the days when we were on a small group, nobody will have accomplished --

mr. garcia: the federation has warned him to stop our wing for the long haul because it is so expensive, indenting chicagoans for many years. they have told him to stop use that borrowing to fund short-term operations -- moderator: mayor, once upon a time, the short-term borrowing cap was $200 million -- you east increased it to $1 billion. mr. emanuel: these problems, we inherited. everybody recommended indiscriminate cuts across the board. that is the wrong thing to do. other people recommended just raise taxes. i rejected both those. i went through the budget,

reforming it, balancing it, ending the gimmicks. no property tax. and the worst thing to do is do what other politicians have done. cutting $1 billion of pledges then telling you that i will appoint a commission, and it won't tell you what is acceptable or not acceptable -- mr. garcia: the civic federation also said as a relates to the chicago public school budget, that it is founded on a gimmick and accounting gimmick. he used 14 months to do them in next budget -- you don't do that. he talks about the largest property tax increase. to try to do that last year through the state legislature. didn't have the guts to do it

through the city council. he was trying to pass a $250 million property tax in the general assembly. who stopped him? the governor. in our last debate, he admitted that there is waste, fraud, and inefficiencies in the city budget. that is why i want to open up so chicagoans know what that waste fraud, inefficiencies are. mr. emanuel: every year we make major structural reforms eliminating waste, finding efficiencies. it is how you increase your school funding from 14,000 kids on day one to where we are now at 24,000. we went through the budget found the waste, constantly reforming. you go through it every year and find different efficiencies.

i-8 knowledge that our job isn't done but we are not -- i acknowledge that our job isn't done but we aren't where we were before. moderator: this has to do with race relations. that would you do about historical tensions over city jobs, contracts, and resources? mr. garcia: when i am elected, i will be a mayor whose core values will be fairness and equity. it has been done before in chicago. chicago cannot move forward as a city unless everyone in the city, all communities, get a fair share that there is equity in the city. chicago cannot prosper if some people are doing great and other people aren't. there has not been equity. groups have been kept out of the mix in terms of employment, contracts, promotion. the culture of the politics in chicago has been in part

responsible for it. it has also been structural racism and barriers that have created -- that have denied people the opportunity to advance. i have been a consistent reformer and progressive and coalition builder, recognizing that chicago can only achieve its potential in the 21st century when you have an inclusive government. moderator: how about the issue of historical tensions between african-americans and latinos? mr. emanuel: first, i want to speak to this issue. the reason -- what indiana's bigotry -- it is wrong. we have left indiana because of their bigotry who are welcome here in chicago. diversity is our strength and it always has been. to individuals of different ethnicities running for chicago

this is the greatest city in america where you can still achieve the american dream. that is our strength. working together and sharing experiences. that happens educationally. it helps make people advance the most and get to their god-given potential. moderator: commissioner -- this is a big issue. a city that produced barack obama. this is an issue well has been a weakness it has been a strength. moderator: commissioner, can you fairly represent the city when negotiating at the union? mr. garcia: phil, i am going to be a mayor that will open up the

books and have difficult conversations with allstate coalition. part of the acrimony with respect to this mayor is the fact that he tried to break the teachers union by making it impossible for them to have a strike authorization. the triggered the first strike in 25 years. this confrontation is not conducive to coming to terms and achieving good outcomes in chicago. my approach will be inclusive and collaborative. we can do things differently and i will and pay to play, politics. moderator: quick response. for years ago 90% of teachers voted to strike. how much of a- -- mr. emanuel: we have a good relationship with cq. let me be clear -- 28 unions agreed with us. we have worked through police fire in 2000 other contracts in an amiable way.

the issue that was at risk was that chicago kids were having the shortest school day and school year. we ended shortchanging our kids and now they have more classroom time. my opponent is not agree. -- opponent does not agree. moderator: gentlemen -- we are out of time. thanks for your generous support of public affairs. a special thanks to the city club members and the guests who joined us in the studio this evening. you can find more information about the candidates. to dan on april 22 when we will hold a special forum with high school students and the winner of the mayoral race.

we >> wednesday, we study on bio defense discusses response and recovery some biological and chemical threats. that is live on c-span two. later, brad carson discusses the army's vision for future operations. we will join his remarks live at 10:30 a.m.. >> next, law school professors discuss the future of antidiscrimination laws. this was part of the boston

university civil rights act. topics include special education law, religious autonomy, and employment the screen nation. it is 90 minutes. >> so, welcome back, everyone. i'm so happy to be able to be the moderator for this, the final panel of this weekend's fascinating conference on the civil rights act of 1964. past present and future. linda mclean deserves every single thanks she has received today. she has done a wonderful job putting this conference together. the title of this final panel is the limit and the future of antidiscrimination law. i will introduce our wonderful panelists in the order in which they will speak. i have to admit the knowledge that we have a surprise speaker.

we will actually go a little bit later than the time initially indicated. to my right is a distinguished university professor and the memorial chair and constitutional law at ohio state university. to my immediate right is the associate professor of government. to my immediate left is our surprise guest, jim fleming. the honorable fellow, the associate dean for intellectual rights. to my far left is vickie scholz, she is before foundation professor at l.a. -- at yell law school. i will be bringing up the rear with my comments. i am an associate professor of

law and anthropology here. without any further -- further ado. >> thank you, linda. i am impressed with people's vitality. my talk will have nothing to do with anything you've heard all weekend. i am going to talk about the special education, which has its own statute. most of you know almost nothing about it. even so, you probably would not know what i am about to talk about. i can't bother to tell you everything that you need to know. what i want to talk about today is what i call dead mothers. which is blaming the mother when things aren't going right in the educational system. in some ways this talk is the second chapter in the talk we

heard yesterday about pregnancy. not only do we devalue women when they are pregnant, we devalue them after they give birth. a lot of people say the right is pro-life until birth. this is what happens after these children are born. to give you three seconds on this law, the way it works is that every child with a disability is entitled to a free and appropriate public education. you might say all kids should get that. yes, they should. the way it is supposed to work is that within a school, there should be meetings that are called individual educational program meetings, with teachers, staff, and parents, and experts. they should be working collaboratively to implement the plan.

that is what is supposed to happen. if that team isn't able to reach a decision, the parents can file a due process complaint using an administrative procedure. each state has their own. if they have to exhaust that administrative procedure, they could possibly file a claim. most parents if they file a complaint will only do so through an administrative process. those decisions rendered at the state level are relatively invisible. you cannot find them, which means the student who has to do the checking on my piece will have to learn other ways to do legal research. they are very hidden and difficult to find. i had to do a freedom of information request for new york. i have a file at my computer with 1400 decisions that i have

not yet read. that is the way you have to do this kind of work. what i did this past summer -- let me get to how i got into this project. i have a son who has been in special education and i have been dealing with the system since he was three years old. i unfortunately had to sue my school district when he was in fifth grade to get him public education. he has flourished since i was successful. but in handling that due process complaint and living as a parent of a child with a disability, i felt put upon. i felt the school district did not respect me in this process. i felt there was a problem that always had me as the culprit. that is unfortunately why i had to sue them before they understood they were badly

treating my son. in doing this work, i began to volunteer routinely to help other parents. the way people find me is that -- they e-mail me, call me. i have never charged a penny for my services. typically what happens is i get a phone call. these days it is more likely an e-mail. i get a phone call and by the end of the mother is in tears, telling me these awful things that have happened to her, the truancy charges against her when her son is having trouble. the ugly things they have said to her and how she feels disrespected. i agreed to go to a meeting. everyone is nice.

they smile, they say what a wonderful person she is and how wonderful her son is and all of , a sudden it is wonderful and helpful and the child progresses depending on how late in the process i got involved. i am like, is she crazy? of course, she was telling the truth. why would she have done it? i decided there is this problem of women being viewed as bad mothers and being blamed and mistreated and the generated. i would like to uncover these stories. i hired a team of students this summer and charged them with reading as many special education decisions as they could within a jurisdiction, to come up with cases of bad mothers. that is what i would publish. before doing that, i reviewed literature to see if other people talked about them. what i found is that there is literature in the field of

education that documents some of it. through the due process system. there is such literature, so i thought i would start by readingit item is found in the general returning i started reading in the general literature and then getting to what i found. you might be able to anticipate that a woman is pregnant. she knows that her child will be born without syndrome. so she talks about after her child is born and is welcomed into the household that it is her fault her son is retarded, the r word we try not to use anymore and it is her fault for not aborting the child. i'm sure you unfortunately have heard those kind of statements. there is some really good investigation about women who are latina or african-american and the experiences they had when raising children with

disabilities. one mother talked about how the school blamed her for allowing percent of the in gangs. of course he wasn't but they assumed that because of his ethnic background. other women talk about how you cannot be too aggressive because then you are the uppity, uncooperative parent. i have been victim of that. you are blamed if you are too uncooperative, but other literature involving latina mothers, they are blamed for being too passive. they might have documents in spanish they cannot read and the school blames them for being uninterested parents and the problem was they could not understand the documents. that is some of the kinds of things i found in the literature. when i did my investigation i found four different themes from the state that i explored.

before giving you some examples to further those things, let me say that the rate of the parent prevailing on behalf of the child is exceedingly low. in three of the jurisdictions, the parent only prevailed around 12 to 15% of the time. the odds are slim for these parents. that itself is an unfortunate factor. there are jurisdictions and massachusetts is one of them. i applaud massachusetts for having a progressive special education system, but massachusetts is the exception rather than the rule. i didn't know that when i brought the claim on behalf of my child, i would have been more terrified. when i tell you the stories, remember that parents and the children virtually always lose. the first example that i want to bring to your attention is one

that the school districts often disrespect the mother's own disability status. in one case that i was reading the mother informed the district that she had a processing disorder that made it difficult to hear verbal communication that was rendered prickly. she wanted documents -- rendered quickly. she wanted documents in advance. a reasonable request. the officer in pennsylvania goes at length disable i don't believe she is disabled, where is her proof? it is the opposite of what the ada says should be the proof would require. there is no requirement that they ever had to prove they are disabled, it is just a request she was making. at the end of the decision the officer says this mother seemed dishonest and hostile, i will

not give any credit to what she had to say. it is a two level problem for the mother. at the school level she is not getting the assistance she needs and at the hearing level it happens again. another case it is shocking, in california where parents never went. i unfortunately had the pleasure of going to los angeles several times to talk about this. the special education director sent an e-mail to the mother, intended for another employee, returned -- referred to the mother and encouraged school employees to bring xanax. one of these drugs one would take to reduce anxiety. fortunately, the hearing officer in the face of such e-mails did actually hold on behalf of the child and described the mother

as restraint and gracious, that is just because they found the e-mails. my second theme. the school district blames the mother's assertiveness for any other educational problems that might a court -- occur. a case from pennsylvania. the special education director unilaterally imposed the rule of the mother could not speak to any member of the iep team accept the director -- accept theexcept the director. she learned of this when it was announced to the entire team. the special education director said three e-mails that were disrespectful. one e-mail made a joke that concerned mother but was rejected -- redaceted.

another e-mail jokingly suggested spanking the mother. that one was not redacted. this is pennsylvania where the hearing officers argues in the -- hearing officers are decent. another imo described her as overreacting. -- another e-mail described her as overreacting. they blame the mother for the problems that exist and give the mother full compensatory damages that the child should have received. that is one of the real problems, even when the parent for veils, maybe the child -- prevails, maybe the child didn't have enter adequate education. it is a pitiful remedy.

there is another case in california. involving a medically fragile child. the mother was concerned that one particular person worked with her child, because of the severe problems that could occur -- the child could die without particular treatment. why should apparently entitled to make sure their child is safe echo that is -- safe? they said it was the mother, not the district or the county. by insisting she have someone working with him that is safe. the third thing, they explain -- criticize the mother for being too passive. the child's emotional difficulties were so severe that the child attempted suicide. the mother had a terrible time

never getting the due process system. i cannot imagine what it is like at home. the hearing officer concludes that the behavior at home escalated, you cannot lame the school district for the behavior at home escalated. -- escalating. the fourth example is placing unrealistic expectations on the mother. a case in washington d.c. where parents often do prevail, one of the best districts to sue in. she did better widget took a three month leave of absence and that -- she did better when she took a three month leave of absence. they said why didn't you stay at home? it is not the school district's problem you went back to work. this is all very depressing.

i don't have anything good to say about it. what can we do about it? there are some things we could do. make sure mothers never go to these meetings alone. for those of you who are law student, you need to adopt one child wherever you're going to law school. mother's should not go to these meetings alone. i never went to these meetings alone because it is exceedingly difficult. that is my big suggestion that i always make. mothers need more support. we need fmla leaves. -- leads. we need support generally. we should realize that mothers are not to blame for children's adverse educational results that the school system is responsible for educating and they are not doing it for much of anybody and especially not children with disabilities.

[applause] >> ok. i want to thank linda for putting together such a great conference and to errand for working out the logistics -- aaron for working out the logistics. this project, what i will talk to you about today is a larger product -- project i am working on about the scope of right. i mean, in what ways the constitutional rights apply to non-stage actors? that is the larger project. it is a comparative constitutional project. in another constitution for this symposium

the south african constitution. it helps to bring in another constitution to reflect on the strengths or weaknesses of the american constitution. some preliminaries. i am going to focus on the hose on a case -- josanna case. i will talk a little bit more about it later on. the court unanimously held that a religious employer could violate federal law, the americans with disabilities act with the ministerial exception. the employee who is considered a minister of the religious employer and as a result the religious employer could violate federal law. criticisms of this case focus on the fact that this case is

inconsistent with cases like -- the pod case. this case is problematic because it treats religions of and allows them to gain exemptions from neutral laws. i'm not going to focus on that. that is a general criticism. that particular focus here is on the attention between the religious autonomy and on discrimination and employment, which is the central feature of title vii. i think that tension is -- in particular, i'm going to focus on comparative constitutionalism, a distinction between higher and lower lawmaking. and i'm going to articulate a structural weakness in the united states approaches

nondiscrimination employment. this is something that scholarly work has not realized enough. ok. what will my brief outline -- ok. i am going to mention a philosophical framework of how we should view this particular attention between religious autonomy and nondiscrimination. that i'm going to suggest looking at the constitution at the republic of south africa and contrasting it with the united states constitution. i will tell you what i mean by vertical and horizontal effect. than i am going to talk about religious autonomy and nondiscrimination. then i'm going to conclude. a philosophical framework -- two equally important rights. i will draw 10 capabilities that are central to human dignity.

i'm going to stick with this. she articulates one liberal framework by which we can view this tension between a religious employer and a prospective or current employee. she suggests 10 capabilities -- i freedom of religion as one of them. she also suggests that the right to seek employment on an equal basis with others is also part of this capability, part of the control over one's environment. the idea here is that both are central to human dignity, but they can conflict. the religious employer discriminates, presumably on

religious grounds, and as a result, the person, the employee, does not have the right to seek employment on an equal basis. it is a clash of two equally important rights. what does the united states constitution say? this will be familiar to you -- the first amendment. i talk about the vertical effect here -- by vertical effect i mean the constitutional rights constrained on government. you can look at the 14th amendment -- the principle of equality and nondiscrimination applies to government or the state. i think everyone is familiar that with this.

this is the most sophisticated i could do on powerpoint. [laughter] the south african constitution also adopts a vertical effect. section 15 says everyone has a freedom to constitution of thought, believe, and opinion. it also says when it talks about equal protection, that rather than equal protection act they say they may not -- it is a very robust notion. the first written constitution to include sexual orientation. seems familiar. but here's the kicker. in section 9.3 it says that no person may unfairly discriminate against anyone on the grounds -- this is a principal horizontal effect.

the constitution says that constitutional rights constrain private individuals a principle of horizontal effect. it is that principle that is not in the united states constitution. the south african constitution says that national legislation must be enacted to prohibit unfair discrimination. nothing in our constitution says we must have a civil rights act. that is the setup. so how does this structural framework intersect with this tension between religious autonomy and nondiscrimination? here's my chart. in the united states, the right to religious autonomy is part of the higher law. the right to nondiscrimination an employment is part of the lower law.

south africa, their higher law is the exercise of free law but nondiscrimination is part of the higher law. i will note that it has been recently argued that this lower law should be interpreted as a supersaturate. even if that is the case, it is hard to make an argument that it could somehow be as important as the first amendment's free exercise clause, but i will mention it is precisely because he is making that argument because this is a lower level. he doesn't focus on this case of a clash of rights, but we can interpret it that it is a structural matter.

if that is the case, what are the implications? in the united states, the implication is that democratic majorities may decide to exempt religious employers. that is exactly what section seven of title vii does. it says that it contains an explicit exception only for religious institutions that discriminate on the basis of religion. the case in 1987 which was coming out of a mormon church -- a gymnasium owned by the mormon church. there was a guy that was a janitor and they fired him because he was a mormon. he argued that this exemption violated the establishment clause and said that congress could exempt religious employers so they can fire a janitor for not being a mormon.

it was clear that the janitor was in no way part of the religious staff or even part of the church. another case out of iowa, there was a nurse and a catholic hospital who was wiccan, and was fired. in the hossananna case, there was a teacher at a lutheran church. what happened was she had narcolepsy. she was told not to return to the classroom. she said this is a violation of the americans with disabilities act. she tells her religious employer and the church fires her saying, you violated church doctrine because church doctrine requires you fixate internally --

and she is in a catch-22. the court in that case unanimously held at the church could fire her. what the court said was that if we did not allow the church to fire her we would violate the free exercise clause. the court said there is a function to determine if someone is a minister. her duties were primarily secular. the court said that is enough to make her a minister. the court says we should defer to the religious employer. keep in mind that a parish was told not to return to work because of narcolepsy that --

there was no religious reason for that. the religious reason came in which he said she was going to sue. the question was is this being done on the basis of pretext? the court said we are not going to get into that. justice roberts cites the magna carta in his opinion about the importance of religious -- the magna carta celebrates its 800 anniversary next year compared to the 50th anniversary of the civil rights act. there is another case coming out of san francisco where a church dismissed an organist for being gay. the court accepted that was constitutional. in south africa, democratic majorities must pass nondiscrimination legislation so it is not easy to exempt. courts must treat rights of

religious employers and employees equally. there was no discussion of the constitutional importance of equality. it was different in south africa. the case in south africa was like the case i told you about out of san francisco -- the gay organist who comes out in the church says we think a sex is a sin. and the church -- not only does he have to be reinstated, the church is fined for violating the constitution. and the court says, in this case, they say the question remains whether that right to religious freedom outweighs the constitutional imperative that there must not be discrimination on the right of sexual discrimination.

they say the right to equality is protected is viewed as foundational to our constitution. it goes on to reason that equality is not merely a fundamental right, it is a core value of the constitution. the south african constitution takes seriously the dignity of the employee and the idea that there is a non-discrimination rights in employment. no match for the first amendment free exercise clause. their employee cannot invoke the equal attention cause to thwart it. principal nondiscrimination is legal in the united states than in south africa. thank you. [applause]

>> can you pass these out? my constitutional law students know i have a handout for every occasion. [laughter] because only half of this will show on the screen, i have a physical handout. i am finishing a book entitled "fidelity to the constitution." i argue that no approach to constitutional interpretation, including a regionalism, and avoid making normative arguments about how best to understand our constitutional commitments including those equal protection and order liberty. a piece from my book that i presented a relates to the past, present, and future of equal protection jurist regions with antidiscrimination law.

preliminary remarks to an issue that arose yesterday. it concerns whether discrimination on the basis of sexual orientation is as invidious as discrimination on the basis of race. in part, it is the structure of pharaoh -- federal equal protection jurisprudence with tears -- tiers that drives people to consider this analogy. if we appreciate that wisdom of justice stevens, there is only one equal protection clause, we can avoid the need to try to shoehorn sexual orientation discrimination into the mold of racial discrimination. we would simply make normative judgments about whether discrimination the basis of sexual orientation demeans or humiliates in a way that violates the sovereign duty to

govern impartially. we see that kind of judgment, i think, in cases like lawrence and windsor. let me quote justice stevens famous statement. there is only one equal protection clause. it requires everything to govern impartially. it does not direct a course by one standard of review in one cases and a different vendor in other cases. these words open justice stevens famous opinion and kuipers is born. this is the first case in which the court applies intermediate scrutiny to gender-based classification. that is the third tier of equal protection analysis. crank was decided in 1976 at the beginning of justice evinces long and distinguished tenure. with these words, he note that

he is an independent thinker and he was to be a justice's standard, not a justice of rules. he was a president who cannot claim he could avoid making normative judgments. order enforcing original meeting of the constitution. what does justice stevens mean when he says, notwithstanding all of these articulated tears there is only one equal protection clause? one, he is making the expectation that to paraphrase chief justice marshall, we must never forget that it is a constitution. not a doctrinal framework. or stevens'admonishing that the framework that the supreme court should not lose sight of its obligation to make normative

judgments about the meaning of our constitutional commitment, including does to equality. on this view, stevens is wearing the court is forgetting that the constitution in indulging the way to develop a complex doctrinal framework. or they may be using frameworks to obfuscate the need for normative judgments that cannot be reduced to application of rules. second, and related justice stevens disney and exit tatian the former structure that doctrines should take. it should not be defined by rigid rules. this is a general feature of jurisprudence. there's is only one first amendment. he has been critical of. already could have written there is only one due process clause. i read -- wrote a paper about

that. when i teach equal protection and constitutional law i have a pop quiz and i put it on this handout. it is a pedagogic exercise to test whether equal protection jurisprudence is these days, notwithstanding the articulated tears of analysis. asked how many equal protection clauses are there? 1, 2, 3, 4, all of the above or none of the above. i ask, what is the best argument for each answer? then i asked if justice stevens was right. let's go through the exercise. what is the best argument that the answer is one? that is justice stevens'argument.