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tv   Key Capitol Hill Hearings  CSPAN  March 25, 2014 12:00pm-2:01pm EDT

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ago going down to -- going over to afghanistan. so i could respond to the president's budget which was at that time going to be talking about the -- what he was going to be doing to the military. i knew he would begin five years ago to start disarming america. what did he do? he did away with our fifth generator fighter, the f-22, did away with the c-17. did away with our future combat system, did away with the ground-based interceptor in poland. now we're looking for something to protect the eastern part of the united states as a result of that. that was all the first year, the first step in disarming america. since that time the president in his budget has taken out of the military some $487 billion. and if he goes through with the sequestration, it would be another half billion dollars. people don't realize where this all started. they'll say, wait a minute, it's
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just entitlements. entitlements is a problem because that's 60% of the total budget goes to entitlements. let's keep in mind there's also discretionary spending that is non-defense discretionary spending. and we -- the first thing that was done, if you all remember when this president took office, was to take $800 billion for a stimulus. none of that was used for the military. that was all for the stimulus. that obligated us on non-defense discretionary spending for the rest of the time at the expense of defense. and so now we're in a situation that is so serious in this country that even our military leaders have come out and made statements. and i'm going to read a couple of these. they need to be in here because people have to understand how critical this situation is and how we have disarmed this country. secretary hagel two weeks ago, he said -- listen carefully to this, madam president -- "american dominance on the seas, in the skies and in space can no
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longer be taken for granted." is this america? we have taken this for granted since world war ii. and all of a sudden because of what's happened through this administration, to the military in the last five years, we can no longer do this. general demsey -- general amos, the head of the marines, he agrees on the increased risk. he said "we will have fewer forces arriving later in the fight. this is a formula for more american casualities." that is what we just said. the risk increases, our very brave troops die. under secretary frank kendall said on the 3rd of january -- quote -- "we're cutting our budget substantially while some of the people we worry about are going to the opposite direction. we've had 20 years since the end of the cold war, a presumption in the united states that we are
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technologically superior militarily. and that is not the case now." so this is what has happened. if you take the top military person, that would be the chairman of the joint chief of staffs, that is general demsey. general demsey was appointed to that position by the -- by president obama. he said to the armed services committee -- that's our committee -- that we are putting our military on a path where the fourth -- force is so degraded and so unready that it would be immoral to use force. this is the chairman of the joint chief of staffs. immoral to use force. this is supposed to be america. we're supposed to be a superior country. and what has happened to us? admiral winifield, the vice chairman of the joint chiefs, he said -- quote -- "there could be for the first time in my career instances where we may be asked to respond to a crisis and we have to say that we cannot, we
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cannot respond to a crisis." this is a, something that unfortunately not very many people are aware of in terms of what we're doing. yes, we want to do what we can for ukraine, and we believe that the state department certainly has an obligation. but the other half of the amount, $the 157 million -- the $157 million cannot come from the military because we are so unready today. i think we have to consider that we have a real serious problem with our military that unfortunately people are not aware of. and a lot of politicians don't talk about it because they're uncomfortable talking about it. i want to mention one other thing on a different subject because today in the supreme court something very significant is happening. i'm from oklahoma. david green, a guy in oklahoma city, and his wife started a group called hobby lobby by making picture frames in their
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garage. that wasn't that long ago. i can remember their doing that. they were able to open their first store which was about 300 square feet. with the profits they made in their little garage operation, it is david green's faith, practice and his day-to-day business decisions that led him and his family to build a successful nationwide company. over the years their business has grown to 602 stores. they have 602 stores now, madam president, with plans to expand, hobby lobby has an annual revenue upwards of $2.5 billion, and david has had success despite running his business in a very countercultural way. for instance, all of the retail stores close at 8:00 p.m. each night and all day on sunday so employees can spend their time with thraeur -- their families. this is appreciated by the company, some 16,000 employees who are paid above the minimum wage. hobby lobby's general employee
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benefit plan includes an on-site clinic with no co-pay at hobby lobby headquarters and eligibility to enroll in medical, dental and prescription drug plans along with long-term disabilities and life insurance and a 401(k) plan with generous company match. this is something that they have done long before obamacare came along. at one point hobby lobby was challenged by a competitor who said they would bury the company with their money so the firm opened their doors on sunday, ultimately earning the company some $150 million in revenue each week. that was over and above what that competitor previously had been able to raise. eventually david green said that he was challenged by god to trust in him with his business, to go back to his policy of closing on sunday, so he did and his business has prospered. david's christian faith runs deeper than his desire to have a
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profitable, successful company. but he's getting both. when he was faced with a decision to make more money or obey god, he chose to obey god whatever the consequences. more recently he was faced with a new task. listen to this, madam president. it didn't come from a competitor. it came from the united states government. part of obamacare requires employers not only to provide health insurance to their employees, but also to provide free access to the pills that terminate pregnancies. david, as i do and many others believe that life begins at conception. i believe that. david believes that. we're free to believe that. and offering an option to end that life would be a violation of our moral compass as defined by his faith and our faith. here's a guy who feels so strongly in his beliefs saying -- and it is his actions have shown he would rather pay the $1.3 million a day in fines
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from the obama administration than comply with the law. in other words, killing the unborn child. today the 3w0*e78d -- the obama administration is claiming this company is waging a war on women. never mind that he has been offering his employees health insurance since long before the government mandated it. so we have the faith of an individual and what he's willing to do for his faith. he's willing to stand up to this abusive government. if you restrict those of faith from applying their conscience to the world around them, then you quench the process of freedom. the obama administration is attempting to write a new moral code if it's going to tell people like david green that he no longer has the freedom to apply his faith, convictions to how he operates his private business. the case before the supreme court today is about maintaining freedom which starts by preserving the fundamental
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freedom of religion under the first amendment, whether it's practiced in a temple or public square. hobby lobby is not alone. but it's a leader in this battle. more than 100 institutions have filed similar claims. four universities in my state of oklahoma have also filed a lawsuit along the same lines. here we have a situation, and it's hard to believe that this can happen in america, where there's a man who has built up, is employing actively 16,000 people who otherwise might not be employed. he's been providing all the income, he's selling products, he's a self-made man who started out in his garage. and he built up this giant operation all throughout america and has made that great contribution. and along comes the obama administration and obamacare that says we're going to fine you $1.3 million a day if you don't offer these abortions. now that's actually being
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considered right now in the united states supreme court. i think god is on our side and i think we're going to have a good outcome from this. but just imagine one man taking the risk of $1.3 million a day in fines just to show, to stand by his faith and behind the 16,000 people who work for him to make sure that good things happen. with that, i will yield the floor. a senator: madam president? the presiding officer: the senator from missouri. mr. blunt: madam president, i want to talk about the same topic that my good friend from oklahoma has brought up. actually i was at the supreme court this morning listening to the arguments on this case, sebelius vs. hobby lobby. and another case involving a pennsylvania company that i want to talk about as well. and of course this case is, as
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the senator from oklahoma has pointed out, starts with the affordable care act and what many people -- and i believe the supreme court will decide -- is really a blatant violation in religious freedom in the way that act would be applied. there's nothing in the act that deals with the rule that sets those big fines up or establishes how those fines would be collected or in fact nothing in the act that specifies specific things that have to be in the so-called model plan. that all is up to the administration, all up to the department of h.h.s. unless the court or the congress do what needs to be done here, which is to say that there are certain boundaries that you can't cross. the affordable care act, the so-called affordable health care act which seems to be providing
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neither better health care nor better affordability was signed into law four years ago this week and in that four years we've seen disastrous effects of the health care act. one is more and more people work less and less. why do they work less and less? because for the first time ever the government said people have an obligation to provide insurance for somebody who worked more than 30 hours. prior to that law, many people had insurance who worked less than 30 hours. it may not have been insurance that the president of the united states would have specified they had, but it was insurance that appeared to be working for them. but once the government says here's what you have to do, the government ironically also appears to be saying here's what you don't have to do. and so we know that the workplace effects are bad. we know that this is one of the principal reasons given for people working part time without benefits instead of working either full time or part time
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with benefits. we see the cut in medicare and the impact that has on seniors. we see the increasing level of amount of money that you have to spend before your insurance kicks in for so many people. and we know that this law is not working for american families or american individuals. now we see a case where the law doesn't work for the constitution. specifically, the law forces businesses like hobby lobby, that was mentioned by senator inhofe, the senator from oklahoma, to offer health insurance for employees that cover services that violates their religious beliefs. this is a company that's always prided themselves in their ability to offer health care coverage that was better than their employees might be able to get other places. this is a company that starts their nonseasonal employees at a rate at about twice the minimum wage. this is not a company that is in
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any way trying to take advantage of their employees. this is a company that has given every indication through the existence of the company that they want to act in a certain way, a way that is comfortable with their faith. the penalties? if you don't do what the government says, the penalties are $36,500 per employee per year. $36,500 per employee per year. in the case of this company that has locations all over the country and has a significant number of employees, that's more than $450 million a year. if you just don't provide insurance at all, one of the points that was made by the government lawyers today, your option would be that you only pay a $2,000 penalty. a $2,000 penalty. $2,000 a year if you don't offer insurance at all.
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$36,500 per year per employee if you don't offer exactly the insurance that the all-knowing government has decided you need to answer. what a foolish position for the federal government to be in. your penalty if you're this big company, the privately held, closely held by a family -- this happens to be a big and successful company but not a publicly traded company. it happens to be a company that chose to incorporate but incorporated within the ability of that family to do that in this closely held way to do that. if you don't pay -- if you don't do what the government says, your penalty would be less than the insurance you're providing by quite a bit. if you don't provide insurance at all. if you don't do exactly what the government says, it's probably an amount of money that puts your company out of business. this company, hobby lobby, with more than 500 arts and crafts
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stores around the country, is a company -- is a company that's being joined in this -- in the case today, the cases were joined together by konostoga wood specialties, a company that manufactures kitchen cabinets. this company was founded by the haans family, a mennonite family from pennsylvania. a smaller company than hobby lobby but a company that still holds their own religious beliefs and has a tradition of holding those religious beliefs in everything they do. two companies of very different size. these are not companies that object to all of the things the list of things the government says you have to offer. in fact, in the area of contraception, they object to only four of the things that happen after -- after conception. the -- the things that would create an abortion, in their
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view, after conception. they both i think traditionally offered other kinds of contraception, but this crosses their religious boundary. and so for these four things only, the government would say you'd have to pay $36,500 per employee a year. there are at least 46 cases filed concerning for-profit companies that have the same kinds of religious objections. more than 10 of those lawsuits in my state, the state of missouri. and it's not just about one set of religious beliefs. it's about protecting all americans' first amendment rights to pursue their faith-based principles and what they believe. these happen to be a mennonite family and an evangelical christian family. there's -- you know, the largest christian group in america, the catholic church, has a -- a broader sense of what they think would violate their religious beliefs.
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but the point here is not what the government is specifically trying to force you to do, it's that the government, under the laws that we have passed, should not be able to force you to do things that violate your faith principles. there are many faith-based groups that have different views on how you deliver health services. i've met with many of those groups over the course of the last two years, since this -- since this rule came out. there are 84 different briefs that have been filed with the court on behalf of these two cases suggesting, as friends of the court, here's something you should think about and look at. and of those 84 religious amicus briefs, there are at least -- they're at least 3-1 in favor of the families that own these companies that want to be able to run their companies based on their faith-based principles. not only are the numbers for
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people that are concerned about this large, but they include a very diverse set of coalitions of people who care. one brief, bipartisan group of 101 -- 107 members of congress, bipartisanly have filed a case that said you should uphold the law that the congress passed that protects people's freedom of religion, not to mention the constitution itself, where freedom of religion is the first freedom mentioned in the first sentence in the first amendment to the constitution, and it is that important in our history of who we are. 21 states have joined this case on behalf of these -- these companies. doctors and women's organizations have filed briefs advocating that the court respect the religious rights of these companies. protestant and catholic theologians have filed briefs,
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the u.s. catholic conference of bishops, the international society of christian consciousness, crescent food, the hollal food company, the church of jesus christ of latter day saints, the coalition of christian colleges and universities, a broad diversity of religious views but they -- they agree on one thing, which is that this is a principal tenant of who we are. just as president jefferson said in a letter he wrote to the new london methodist in 1809, that of all the rights we hold, we should hold the right of conscience most dear. once you allow the government to tell you what to believe and how you should believe, we have given up the most fundamental of all freedoms. congress has a long tradition of protecting religious liberty. the congress enacted the religious freedom restoration act to ensure broad protection
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of religious liberty. the h.h.s. regulations do not satisfy the high bar set by that act. that is a position that i hope the court upholds. the mandate is an enormous government overreach and it violates americans' constitutional rights. while this mandate severely fines religious individuals, it exempts plenty of other non-religious institutions. the administration's already exempted 100 million employees from the mandate for commercial or political reasons. people should also not be forced to give up their business to hold on to their faith or to give up their faith to hold on to their business. these family businesses are not publicly traded corporations. there's not one court case -- i'm not a lawyer but i'm told this on the best authority -- there's not one court case that
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diminishes the rights of these kinds of corporations. in fact, numerous federal courts have upheld the ability of for-profit corporations to bring racial discrimination cases. so you should have a racial profile as a corporation but you couldn't have a religious profile as a corporation. this is an untenable position for the government to take. the supreme court has heard this case today. i join my colleagues on both sides of the aisle and in both chambers to urge the court to preserve the fundamental religious freedoms that americans have enjoyed, that the constitution demands, that laws passed by the congress and signed by the president overwhelmingly in 1993 continue to be the standard that these -- that is applied to our right of conscience, our right to believe what we want to believe and must believe and do believe. and i am pleased to be joined by my colleagues here i think to talk about this very same topic.
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mr. coburn: madam president? the presiding officer: the senator from oklahoma. mr. coburn: i thank senator blunt. i did not get to hear all of senator inhofe's comments but as an oklahoman, we couldn't have a finer company or a finer corporate citizen than the greene family in terms of their chains of stores around the country and in what they've do done. the reason they're successful is because they actually care, nurture and support every one of their employees. and they work on some principles that they -- they truly believe in, and it's really been the key to their success. they're never open on the sabbath. they believe you pay somebody a livable wage. they're big in the community.
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as a matter of fact, some of the largest contributors to organizations that are funded in the charitable realm that go down deep to actually help people. so they come with pure motives. the senator from missouri mentioned thomas jefferson. here's what he said in 1809. "no provision in our constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority." i want you to listen to that for a minute. jefferson, one of our authors, one of the authors of the rules of the senate, one of the key framers of the very constitution that we live under, recognize that -- what he's saying, in essence, is the most important thing is to protect the conscience of the green family to do what they think, according to their faith, is the right
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thing to do. my colleague referenced the religious freedom restoration act. why was that necessary? because we saw civil government starting to impede into an arena that thomas jefferson warned about. that's what it was passed. that's why it was signed. that's why it's the law of the land. this is going to be a seminole case and it has nothing to do with birth control. hobby lobby pays for birth control. always have. always will. it has to do with the fact, can we allow the civil government to impede to such a level, as my colleague from missouri said, that the government can now tell you what your values are, what you have to think, and how you have to act? on the basis of what the government says your values are? as somebody's who's delivered
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more than 4,000 children as an obstetrician, as somebody who's cared for every complication of pregnancy, as somebody who believes in the value of newly created human life, all the greens are saying is, we really shouldn't have to pay our money to abort a baby when we find it unconscionable to take innocent human life. it doesn't mean people that work for them can't get an abortion. it just that says they don't want to violate their own conscience by supplying that. the other thing that ought to be evident to everybody that's out there is plan b's over the counter. it's not even part of your health care. you can go buy it. as a matter of fact, there's not even an age limit on it now. a 12-year-old can go buy it over the counter. so it's not about limiting abortion. it's about the conscience of a
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very successful company, and the reason that they're successful is they've followed the teachings of their faith. and now we have the government in a position that they're going to tell them what their faith is. let me reiterate what jefferson said. "no provision in our constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority." these are deeply felt and held beliefs based on their faith. the other side of this is we see their deeply held beliefs and how they've rescued universities, have they've come to the aid of food pantries, how they've actually been active in the community in everywhere they're involved, they're out following the same deeply held beliefs of helping the poor, helping the indigent, giving
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people opportunity through a college education that they never would have had, given people a day of rest. their stores aren't open late. their employees get to go home. they could sell more product if they were open later. they could sell more product if they were open on sunday. they choose not to because they think the principles under which they operate their business, based on their faith, have created an environment which allows everybody to succeed, who works for them. and if you go through their businesses, if you go through their warehouses, if you go to their stores, who you see is a -- what you see is a smile on almost everybody's face. why? because people enjoy working there, because they're treated like human beings, they're lifted up, they're given opportunity. they're given the very thing that we all want for those that are our neighbors and for ourselves. my hope is, is that the constitution will be looked at
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as the supreme court considers this case and that the religious freedom restoration act will be looked at as the supreme court considers this case. the affordable care act is not affordable. it's unaffordable for america, it's a $2 trillion cost over the next 10 years. it's a disaster in terms of how it's been implemented. it's going to be a disaster in terms of the quality of the care and delayed care because of the increased deductibles that almost everybody in this country is facing. we shouldn't let it be a disaster in terms of destroying businesses. we ought to embrace this family and their businesses for what they've done. they've taken advantage of the american enterprise system in a way that's built a tremendous success that has benefited not just the green family but hundreds of thousands of people through their generosity, through their capability to empower people to get ahead. i'm glad to see my colleague here, and i yield the floor to
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her. mr. blunt: madam president, i would ask for an additional five minutes for the senator from new hampshire. the presiding officer: without objection. the senator from new hampshire. ms. ayotte: thank you, madam president. i come to the floor today to talk about a very important case that our united states supreme court heard arguments on this morning that goes to the very core of our nation's foundation, the future of religious freedom in the united states. as americans, we cherish our religious liberty. it lies at the heart of who we are as a people and we know that we must always guard against threats to our religious freedom that is enshrined in the first amendment of the constitution. that is why i'm here on the floor today to join my colleagues, senator blunt, senator coburn in speaking in support of the constitutional
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rights that all americans have under the first amendment, which guarantees the right of freedom, of conscience and religious liberty. and here's what's at stake. americans should not be forced to give up their religious freedom or their rights of conscience simply because they want to open a family business. american families should not be forced into choosing between their family business and complying with unlawful government mandates that infringe on the first amendment to the constitution. and that is why this case that is being heard today by our supreme court is so important to the american people. a provision of president obama's health care law includes a mandate that threatens penalties on private organizations unless they involuntarily agree to
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violate their deeply held religious beliefs. this is an anajibulla an anathe. if religious and faith-based organizations are forced to comply with government mandates that violate the core principles of their faith, this is a violation of the first amendment to the constitution, and it's contrary to what we stand for as americans. i've heard from people in my state who are deeply concerned about this mandate and the issue that is being considered by the supreme court today. they're simply asking to have the same conscience rights that they had before the president's health care law was passed, the same conscience rights that are enshrined in our constitution that protect all americans, regardless of what our faith is, wharls of our background --
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regardless of our background. this is a matter of religious freedom and the proper role of our government. it is about who we are as americans, and if the government, through mandates, can take away our conscience rights, what does that say about other rights we have under our constitution? this debate comes down to the legacy left behind by our founding fathers and over 200 years of american history. we have a choice between being responsible stiewrdz o stewardss legacy or allowing government to inter fear with an unprecedented way. protecting religious freedom has been a bipartisan issue. congress has a long history of protecting religious liberty. i've heard my colleague talk about the religious freedom restoration act that was actually signed in to law by president clinton to ensure that the government should be held to the very high level of proof before it interferes with someone's free exercise of religion. that is what's at stake in the
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supreme court decision and the mandates that are being rein dirrenderedby the health care l. this is what's at stake under the president's health care law companies like hobby lobby and conestoga -- and we have a hobly lobby in new hampshire -- who do provide health care to their employers could be forced to pay over $46,000 per employee unless they provide drugs and devices that violate their religious beliefs and conscience rights. why should they be forced in this position? if the federal government is able to violate the first amendment in this way, what's to stop other fundamental rights being violated? protecting religious freedom was once an issue that bound americans together and i believe this effort, which is so fundamental to our national characteristic, must bring us together once more. i look forward to seeing the
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supreme court's decision on this issue, but this is a case that never should have been filed. the affordable care act or obamacare should never have violated the rights of conscience of these companies or of religious organizations, and it is time to turn this around and i look forward to the supreme court vindicating their rights under the first amendment to the united states constitution, which should have been respected by this administration, but that is why our supreme court is there, and i look forward to the supreme court decision, which i hope will uphold the first amendment rights of the parties to this litigation and to all americans. i thank you, madam president. the presiding officer: under the previous order, the senate stands in adjournment until stands in adjournment until
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this morning into cases of civilians versus hobby lobby and specialties. the nation's highest court will decide if the for-profit corporations can't deny its employees contraceptive health coverage based on religious objections by its owners. you just heard some comments on the floor of the senate about
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that. following the argument today several of the litigants and their attorneys came out to speak to reporters just outside the court. >> thank you everyone for gathering. i am with the fund for religious liberty and to read present the family. we will first hear from barbara green from hobby lobby. >> our family started hobby lobby built on our faith and together as a family. we've kept to that tradition for more than 40 years and we want to continue to live out our faith and the way we do business. the choice the government has forced onto us is unfair and not in keeping with the history of our great nation founded on religious freedom. we believe that americans don't
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lose their religious freedom when they open a family business. we were encouraged by today's argument. we are thankful that the supreme court took our case and we await the justices decision. thank you. >> we will now hear from the council for the fund for religious liberty's and the green family. >> this case poses a critically important question, do americans give up their religious freedom when they open a family business? b. are encouraged by the arguments today the justices seem deeply skeptical of the government argument that americans who opened a closely held family business give up their right to religious freedom and can be subject to whatever the government mandates what they do. the green family's long operated hobby lobby consistently with its religious beliefs and religious principles hope to be able doing so -- they hope to be
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able to continue to operate hobby lobby consistent with their religious beliefs, and we are hopeful a good decision will allow them to do that. thank you. >> that was x-ers william f. we. the family will be coming out shortly. anthony will be delivering a statement. that statement is in the package that i sent around the 20 give them shortly. thank you. lori windham. council for the becket fund for religious liberty and representing hobby lobby in this
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case. here comes the family. anthony and his wife from downstairs. back, back. thank you. >> yes, this is haun is in a green dress and anthony is to the left of her. [inaudible conversations]
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we welcome the family. and then he will deliver the statement on behalf of. >> since my family first opened its pe 11 and my dad's garage 50 years ago we saw to glorify god not only in the quality and craftsmanship of our products but the principles that inspired our lives everyday. we been even hard work, good citizenship and the dignity of our customers and our employees who are all created in gods
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image. we never thought we would see the day when the government would tell our family that we could no longer run our business in a way that affirms the sanctity of human life. and the government would actually force us to be complicit to the content of the structure of human life. it's a sad day has come. rather than sacrifice our obedience to god, my family, the green family and many others have chosen to take a stand to be friend of life and freedom against government coercion. we didn't choose this fight. our families would have been happy to continue providing good jobs and generous home care benefits. but the government forced our hand. we hope and pray that the supreme court will uphold the religious freedom of all americans to seek to glorify god even as we go about making a living. thank you. >> now i believe we will hear from -- tom clement will be
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coming out shortly. and we will take questions from the press. to clarify, the two cases of hobby lobby and conestoga wood for consolidated cases. conestoga wood was represented by life freedom and hobby lobby by the becket fund for religious liberty. paul clement argued for both of the cases.
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>> my name is marcia greenberger and i'm the copresident of the national women's law center. we filed a friend of the court brief on behalf of almost 70 organizations, speaking for the women whose health and futures are at stake with respect to their access to contraceptive coverage. the supreme court has said in the past, and i want to read this quote, being able to decide when or whether to have children boosts women's ability to participate equally in our nation's economic and social life, access to birth control has improved women's status and overall financial security, and i would add as well as their health and the health of their children.
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the use is nearly universal. and its benefits are extraordinary in this case is whether when the government determines that a preventive healthcare that is a central front in the women must be provided to them can be overwritten by any for-profit corporation that decides to do so would be objectionable to the corporation. my organization, the national women's law center heard from someone who wasn't heard from in the supreme court. and that was actually a woman that was an employee of hobby lobby itself. and she spoke, and i can read from her words specifically about the importance of contraception to her and her
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family. and she said that it would allow a woman to lead, and she said a responsible life. and it is the ability of women to be responsible and to protect their own health that is at stake in this case today. thank you very much. >> i'm the president of pro-choice america. i want to say one simple thing. what the court heard today is that it was defined for the plaintiffs in the case it would be the first time the courts of this country had proactively extinguished the rights of any american. this is about all women, all women's health and all men's freedom. we are the 99%. we will not have our rights extinguished from our bodies are
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not our boss's business. >> cecile richards, president of planned parenthood action fund and i'm proud to be here on behalf of the 3 million patients we see every year for health care. healthcare. i think what we saw today in the court is the importance of having women on the supreme court. i was so proud to be there as a woman that cares about women's health, to have the justices talk about the fact that what is at stake in this case is whether millions of women and their right to preventive care, including birth control is trumped by a handful of ceos that have their own personal opinions about birth control. it was a wonderful day i think for women, and i believe that this court understood that women have the right to make their own decisions about healthcare and other birth control. and it is not their bosses decision. thanks. >> the aclu. as you know, we are steadfast
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protectors of the first amendment of the right to religion. we heard the court concerned about the interest of women. we were heartened to see the court asking of questions about the third party that would be compromised and heartened and in total agreement with the statement which is if the court goes the way that hobby lobby and conestoga, this would be the first time that a benefit for employees would be extinguished by his employer. religious freedom gives us our right beliefs but it doesn't have us the right to impose them on others. thanks. >> we will now hear from paul clement argued the case is today. >> the council for conestoga to make a statement. >> i just wanted to say this is not about a corporation. this is about a family. a family that has been a pillar to their community for over 50 years and providing jobs to men and women with good benefits and good insurance coverage.
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and this is something that they don't separate when they go to work during the week. they live their lives into their faith throughout the week. they are very generous in their contributions. they live their faith every day of the week. they don't separate it when they open up their family business. and i think is important here because this abortion pill mandate is an unprecedented intrusion into family business where the government dictates that the cost of severe and crippling fines and penalties that people should violate this sincerely held religious beliefs when they decidebeliefwhen theya living. and i am really sure that when all of us make a living we do not forfeit our constitutional rights of the statutory free foe exercise rights and neither should the hahns. >> we are gratified that the court heard of the cases and accepted both of them. we think it was important for them to understand the religious objections of both the green and the hobby lobby case and the
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hahns conestoga case. the supreme court took the cases very seriously, took them under consideration. we do think there are concerns when the government comes in and takes a position that even a coaster deli that was told it would have to be open on a saturday that they would have no basis to even get into court and make that claim, that is a very difficult argument to sustain. the nature of their argument would also say that a for-profit medical clinic would have no ability to raise the conscious of ejection and only if the congress provides the conscious objection would they have the position to do that. those are the arguments that were presented to the court today. obviously we covered a great deal of territory. if there are a couple of questions, i would be happy to take them. >> [inaudible] >> i think the court got to that issue by saying that there is really no case on either side that says that either the for-profit corporations definitely have religious
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exercises and that there is no case that says that they definitely don't. but i think what the arguments explored is that the vilification that saying that a for-profit corporation under no circumstances can even get into the court to raise the free exercise claims is unattainable. at one point of the solicitor general even seems to concede if it were a free exercise claim that discriminated, that determinatiocourthave the basis. i don't understand why if the corporation has the ability to vindicate that claim they wouldn't have the ability to vindicate the claims that were issued here. >> what if it isn't forcing anybody to provide health care that they don't agree with what it is giving them the option not to provide health care at all? >> the options of the statute for the company like hobby lobby is the option to either pay a 475-dollar per year for nine or 26 million-dollar per year buying or comply witfinedor comt mandate. the point is not that any of the
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companies are asking for something, some special treatment. the point is the congress passed the statute that you have heard so much about that provides every person in the country the right to be treated on the basis of their person and not on the basis of the religion not to be discriminated on the basis of the religion and if they put it on a person's religious exercise and they cannot support that with a compelling interest, the person's claim is supposed to be vindicated. and the fundamental problem with the governments is that an agency has provided this accommodation or extension for the sunset of the employers protected by the mandate and a subset of the person protected. but when a different protection to every person in the country, it is not for the administrative agency to provide a protection only for the chosen few. [inaudible] >> the only sense that i have is the court took the case very seriously as it does every one
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of the cases and we are gratified that we have the opportunity to present the case to the court and we would await their decision. thank you very much. >> i am the president and ceo of americans united for life for the pro-life movement, and we are here today representing the family of jewelry hotels -- drury hotels. we have moved to undermining american freedom of conscience. they put the con and contraception by labeling the drugs actually have life ending properties. properties.
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in our amicus brief in this case demonstrates very clearly that the scientific evidence shows that some of the drugs that are covered under the mandate do have life ending properties. and our client drury hotels and the obstetricians and gynecologists all argued that theiargue thattheir freedom of s violated by this statute. thank you very much. >> can you say your name and title? >> im charmaine yotes americans for life. >> we've also been hearing from you on twitter about today's case in front of the u.s. supreme court.
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we will air the argument of this friday at 8 p.m. eastern time. that's on our companion network, c-span. yesterday, former solicitor general kenneth starr and constitutional law attorney alan dershowitz debated the facts before the court today and the potential outcome and how the decision would impact the for-profit corporations at this event hosted by georgetown university and baylor universi university.
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>> good afternoon ladies and gentlemen. ♪ >> [inaudible] i am the director of the religious freedom product and georgetown university berkeley center for religion, peace and world affairs. if you would like to follow us on doctor, our hash tag is #ontopic so please join us. thank you for joining us for this timely and important conference titled everybody's business, though legal, economic and political implications of religious freedom. i can promise you an exciting entertaining and eliminating a
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few hours together. we will begin shortly with a special on topic conversation between the president and the chancellor of baylor university and the harvard law professor alan dershowitz. the subject will be the hhs mandated affordable care act and its implementation for american law and society. the two panels will then follow to focus on the legal aspects of the hobby lobby case that will be heard tomorrow before the supreme court. let me acknowledge the presence today of several members of the family whose business is hobby lobby of the green family, including mr. steve green, president of hobby lobby. welcome. [applause] i would also like to acknowledge the presence of bill and christina the president executive director respectively of the fund for religious
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liberty. it's a nonprofit legal and educational institute that is representing hobby lobby before the supreme court. so, welcome to you all. [applause] the second panel today will build on the first. it will look at the fascinating question of whether religious freedom is good for business and for the poor. now, i'm going to introduce judge starr in just a moment. but before i do that, let me say a few words about this event. this conference celebrates it partnership between two great faith-based universities, georgetown, which is the oldest catholic university in the united states, and baylor which is the largest protestant university in the world. the cosponsors are georgetown religious freedom project and baylor institute for religious freedom directed by professor byron johnson who you will meet
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later in the program. the religious freedom project is the only university-based center for the study of religious freedom in the world. our goal is to research and disseminate knowledge about religious freedom; what it is, why it's important for every person, religious or not, for every society, for every state. indeed, we believe religious freedom is important for international justice, stability, and peace. we define religious freedom in a broad and capacious way. it's the right of every person to be leaving to worship or not, and if one is a religious believer to act on the basis of belief in the public life of one's nation both as an individual, and as a member of the community. religious freedom as we understand it is therefore not merely a private right to worship. it entails the right to engage in civil society and business and politics. on the basis of one's religious
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beliefs. religious liberty is not a mere claim of privilege by religious people, rather it is a pillar of stable democracy, economic development, and a societal foraging in general. .. >> and that includes the united sts of america. one of the questions looming behind this conference today is
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whether the hhs contraceptive mandate and cases like that of hobby lobby reflect good government policy or are a sign of a declining respect for religious freedom in the united states. our goal at the religious freedom project is to raise the profile of this issue both here and abroad. we want to increase the attention to religious freedom among key groups that are not paying enough attention, in our judgment; that is, government officials, the media, the academy and the business world. we do our work through a team of international scholars, many of whom are here today, and through books and articles, workshops and consultations with governments, public addresses, congressional testimony, media appearances, conferences like this one here and abroad and a vigorous web presence including a new blog that we will formally launch later this month. sorry, later this spring.
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and all of these activities we seek to engage not only religious groups, but secular society in general. in particular, the skeptics of religion. in a very real sense, ours is an attempt to conduct a conversation about religious freedom with everyone, especially those who do not share our premises or our views. in that respect, let me mention the new blog that we will formally launch later this spring. it's entitled, "cornerstone: a conversation on religious freedom and its social implications." astoundingly, notwithstanding the importance of this subject, there's so far as we can tell not a single blog in the united states that focuses exclusively on religious freedom, its meaning and its value. our goal with cornerstone is to fill that gap. you'll find a flier on your tables that gives you the url for the blog's temporary web page which we put up this weekend. we invite you to go to the blog that's under construction over the next several weeks and give
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us your opinion on its content, its layout. we programs to take your views into account as we formally launch cornerstone later this spring. now let's get to our on-topic discussion between judge starr and professor dershowitz. it's our practice to engage the audience in our conversation, so we provided each of your tables a note, several note cards to pose questions to these two gentlemen. so so if you have a question as you listen, please write it down as succinctly as you can and include your name and affiliation. and then at about 1:20, we have a magnificent cadre of georgetown students who are here with us today, and they will go around, as i say, about 1:20 and collect the cards, and we'll choose questions here to present to judge starr and professor dershowitz. here's how we're going to proceed now. i'm going to introduce judge starr, then the two of these gentlemen will come to the stage, and the judge will
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introduce professor dershowitz, and they'll begin tear conversation. but let -- their conversation. but let me say, professor dershowitz, on behalf of georgetown university, what a delight it is to have you with us today. ken starr is president, chancellor of baylor university. he also holds the louise l. morrison chair of constitutional law at baylor law school. during his illustrious career, he has served the country in many ways, including as law clerk to chief justice warren burger, as u.s. circuit court judge for the district of columbia circuit and as solicitor general of the united states under president george h.w. bush. judge starr has argued 36 cases before the supreme court including 25 while solicitor general. he's authored more than 25 publications, many of them on religious freedom, and his first book, "first among equals: the supreme court in american life," was published in 2002. as someone who has had the
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privilege of getting to know judge starr over the last year, i can tell you that i have never met a man more suited to the task today; that is, to conduct a civil, intelligent and vigorous conversation about one of the most important and controversial issues of our time and that our country faces. and that issue is what is at stake in the contraceptive mandate of the health care law known as the affordable care act. ladies and gentlemen, please welcome to the stage professor or alan dershowitz and judge ken starr. [applause] >> good afternoon. i'm going to be mic'd up, i think, in just a second.
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>> all right, thank you very much. well, let me join our wonderful friend, tom farr, in saying welcome to this wonderful audience and those who are joining us by c-span. i have such a joy in introducing my friend alan. do we agree on every issue? well, no. [laughter] >> do we agree on any issue? yes. [laughter] so, you see, the discussion's already started. alan needs no introduction, but i'm going to do it anyway. he taught for 50, 5-0, years at the harvard law school where he was a legendary teacher. he's a great professor who cares deeply about the students, and that's so important in academic life. and in addition to his over 1,000 articles, his over 30
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books, count them -- which is extraordinary. i've written one, and that was very hard. [laughter] and not nearly as well read as alan's remarkable work. and in addition to being this renowned chair professor at the harvard law school -- and, by the way, does anyone remember cal ripken, jr.? the baltimore orioles? and alan loves baseball, as do it. during those count the number of semesters over 50 years, he missed one class. alan, what's your excuse? [laughter] >> i was stuck on a train. >> there it is. [laughter] >> eight hours outside of new haven. i had to call charles ogle try, he had to substitute for me. >> there it is. a wonderful, caring, gracious human being, and let me also just add a great friend of freedom including those charged
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with crime. now, he tries to today out of the limelight, as you know -- to stay out of the limelight, as you know. [laughter] but somehow behind the scenes he represented o.j. simpson, klaus von bouloute, mike tyson, you get the idea. he's a friend of liberty. and he is a great friend of the bastion of liberty in the middle east, israel. and feels passionately about it while calling his power always needs to be checked, calling us who from time to time hold power or the state of israel, calling the state to account. but nonetheless, the baseline is liberty. which brings me to where i think we should begin. not with the affordable care act. we'll get to that. but i think we should begin with the preamble to america's constitution. because that was the ultimate sovereign act by we, the people, summit to the amendment
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process -- subject to the amendment process and the purification of our constitutional order through the shedding of blood in the civil war and the post-civil war amendments, 13th and 14th and 15th amendments. what the preamble lifts up is a moral vision, not just a political statement, of we, the people, in order to form a more perfect union. i like that, a more perfect union. and then to achieve certain very foundational goals. what's the first goal after to form a more perfect union? to establish justice. if you don't have a just society, there's not going to be anything worth defending. so then to provide for the common defense and to insure domestic tranquility and to promote the general welfare, it builds crescendo-like in the one paragraph, that beautiful
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paragraph that school children should all commit to memory: and to secure the blessings of liberty to ourselves and to our posterity. welcome, alan dershowitz, to a conversation about a specific subject, the affordable care act and hobby lobby. we're honored to have the green family here. and let me get alan's thoughts to start out with. but i guess i should set the stage just to make sure we have common ground, and alan will correct me. i frequently stand in need of correction if i get something wrong. but briefly, briefly stated, the case that will be argued tomorrow involving the affordable care act implementing regulations with respect to contraceptions involves a family. yeah, a corporation, it's a for-profit corporation, so you're going to read a lot and hear a lot about does the first amendment really apply at all to corporations? well, okay, maybe they apply to
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nonprofit corporations because, you know, churches and synagogues may incorporate as a nonprofit, but what about for-profit corporations? hobby lobby has been, it's a great american story, you know? >> uh-huh. >> a garage. david and barbara green in the 1970s have an idea, and it's an arts and crafts store idea. and over the fullness of time, hard work and they would say by god's blessing, by providence, a whole lot of hard work and energy now over 500 stores, almost 600 stores, maybe even more. and about 13,000 employees. the corporation is closely held, so there are no wall street types running around reviewing financial statements. they may try to, but the family owns it. david and barbara are the parents, that's mom and pop, now grandfather, grandmother. and then the three adult
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children. that's a closely-held corporation. so one of the issues that is going to be in the case is the affordable care act's requirement of providing or requiring companies' employee benefits plans to provide certain forms, namely 20, forms of contraceptives including four that the green family as a matter of conscience object to. and they object to it on pro-life grounds. those four methods as they see it involve the taking of innocent human life. and so the question for the court tomorrow is whether a statute -- and i hope we'll have a chance, alan, to talk about the statute as our conversation unfolds -- the religious freedom restoration act. what a great name. congress come cans up with great names -- comes up with great names, don't they? rfra. not a great acronym. welcome to washington, d.c., we have an acronym for everything,
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and the religious freedom restoration act provides, in effect, that if government is going to place a substantial burden on the exercise of religion, then it -- the government, we're talking about the federal government here -- the government must come forward with a compelling justification. alan is the experienced professor of constitutional law, so he can describe that. but in short, it's got to be really important. [laughter] not just legitimate, but one of the cases talks about governmental interests of the highest order. so suddenly liberty is truly the baseline, the blessings of liberty. government enacts something, this through implementing regulations drawn from, hhs drew it from the institute of medicine. they didn't just make it up. so here are these 20 methods. but now i we have that requirement of the aca coming into what i'm just calling,
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alan, a conflict of visions. it's big government, and i don't mean that pejoratively, i mean that just it is big government up against a family that has been very successful, that has built this business inter-- enterprise, that is dedicated as the greens have said beautifully, essentially, to christian mission work. they don't live lavish lives. i've each seen that personally. -- even seen that personally. they live very good lives caring about people, including their 13,000 employees. so it's really a conflict of visions. does rfra now provide an exemption by congress' enactment -- not judges alone -- but does rfra by its terms provide an exemption that the green family doing business as hobby lobby and i mean by that it's a corporation, that is really at issue here. so, alan, your thoughts.
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>> well, first, a very ir statement of the case. second of all -- >> that's the first time he's ever said i've been fair. [laughter] >> we're off to a great start. thank you so much for including me in this conversation. as you know, i'm a great admirer of ken and of his university. this is a wonderful partnership between two great institutions and two great religious traditions. i can't imagine anything that is more suited to kind of the american way of dealing with things, an american academic way of dealing with things, so i'm thrilled to be part of this. i've been thinking about this subject now for 65 years. let me explain why. when i was 10 years old, my father had a tiny little store on the lower east side of new york where he sold men's underwear and work clothes. he was a jobber. that is, he was the middleman. never made much of a living but was, and all of his life was, a
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very orthodox jew. and, therefore, he couldn't keep his little store open on saturday which is the chaabat. occasionally, i would go and help him on sunday, and one day when i was there on sunday, the police came and arrested him for violating the sunday closing law. they didn't take him away, they just gave him a summons, and they told him he had to be in court in two days, and my father asked me to come out of school to watch how the american legal system operates. [laughter] and he was very lucky that day because the judge he drew, elected judges in new york, was a judge named haiman barshay. [laughter] so my father came before the judge, and barshay said, why are you open on sunday? and he said, because i have to be closed on saturday because i'm an orthodox jew.
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the judge said, okay, what was the portion of the week that they read from the bible in the synagogue on the saturday before you weren't able to close your store on sunday. you know, in the jewish tradition every week you read from the bible, and every libly call portion d we don't do it by chapter, has a name. the name of one of the characters in the first word of the bible. my father immediately knew the answer, the judge tore up the ticket and said if you hadn't known the answer, i would have doubled your fine. [laughter] so much for separation of church and state. [laughter] freedom of religion. but i had have been thinking abt this subject literally since that period of time. now, i am your perfect audience here. why? i am a skeptic. i am a skeptic about everything. i'm a skeptic about religion, i'm a skeptic about law, i'm a skeptic about science, i'm a
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skeptic ability skepticism. i'm not even sure that's such a good thing. [laughter] but my life is just skeptical. i will die a skeptic. i will not ever know the answers to any of these questions -- >> we're going to bring you armed, alan. [laughter] >> i hope so. my mother would bless you from -- [laughter] but i am a skeptic. i'm even a skeptic on the constitution. i would have written the phrase "establish justice" differently. in the jewish tradition the word in the torah is -- [speaking in native tongue] justice, justice, must thou chase after. the idea being you never achievement and or establish -- achieve or establish justice. justice is always a work in progress. it's always running away from you, and you're always trying to catch up. and you never will. it's a verb, justice, not a noun. and i'm skeptical about our abilities to achieve justice.
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i would today regard myself, as i said, as a skeptic, but tremendously respectful of religion. the book i was working on in the room prior to this is my next book, it's called "abraham: the world's first but certainly not last jewish lawyer." [laughter] and it tells five stories of abraham. abraham the idol shatterer, abraham who accepts god's command to sacrifice his son, to bring his son up to sacrifice, abraham who rescues his nephew, and abraham the real estate wheeler and dealer who buy withs his wife a beautiful cave in hebron. and from there i think about -- [laughter] how lawyers have emerged, really lawyers in general. i wrote a book called "the genesis of justice" a few years ago which is my interpretation of the bible. so i love the bible. i have told my students if i were ever on a desert island and i could only bring one book with which to educate my students in philosophy, law, psychology, you
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name it, it would be the bible. and by which i would include the jewish bible and the christian bible. if i had a third book, i would also include the quran. i think you can learn so much from religion and religious traditions even if one is a skeptic about some of the ultimate questions. now, i have to say i am not sympathetic to the views expressed by the wonderful green family whose business i love and whose story i love. i'm not sympathetic to your views on birth control. my views are completely different from yours. i believe birth control is a good thing for society. i believe that the right to to control one's procreative abilities are very important for society. i am also a big admirer of president obama's affordable care act. none of that is relevant to this discussion because it's not i who decide whether you have a religious right to do something that i disapprove of, it's you
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who decide that subject, obviously, to the constitution and statutes. and the case is not about whether you like affordable health care or not, it's whether or not the statutes in the constitution require religious exemption in cases such as yours. so in the end, i'm waiting to be persuaded, i may end upper sueded that you're right as a party of statutory interpretation and as a matter of kind of constitutional overlay. i may regret that result from a policy point of view. anything that hurts affordable care, anything that sets back a woman's right to choose contraception, and i know you're not suggesting you're opposed. in fact, it's a very interesting brief and a very interesting way you put it. you have no opposition to individuals disagreeing with you about using contraception. you just can't as religious people who feel that this is in violation of the right to life.
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you can't participate. >> in those four, let's just be clear, of the 20. >> and if it were six, it would be six. >> it's the principle. >> it's the principle that really matters, and i'm completely supportive of you on the principle. i just want to say one word about the jurisprudence before we have the discussion. i had a great time reading the briefs in this case, and it really reminded me of being back in my jewish parochial school. on the one hand, on the other hand -- [laughter] you read this case, there's this interpretation of this case. you know, there's the old story of the eastern european rabbi, and he's sitting in a divorce court, and the wife comes in and says my husband is a bum, he's a drunkard, he beats me, and the rabbi says, my daughter, you're right. and then the husband comes in and says my wife, she's lazy, she doesn't do anything, she doesn't work, she doesn't take care of the children, and the rabbi says, my son, you're right. and the student says, rabbi,
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they both can't be right. and the rabbi says, my son, you're right. [laughter] and that's the way i felt reading the briefs because the discussion so talmudic. you can interpret the constitutional jurisprudence today almost any way you want. i'm reminded of another great story, and then i'll turn it over to the conversation. it's the story of two great rabbis who were arguing about an arcane interpretation of the great 12th century philosopher, and he had said something earlier in his life that was completely contradictory to what he had written later in his life. and the rabbis were coming up with one brilliant interpretation after another how to reconcile. finally, god says, look, this is the most brilliant argument i've ever heard, let's call him in, i can do that. so he calls him in. he hears both sides of the argument, and he says but, you know, it was just a
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transcription error. i didn't really mean to create irreconcilable differences. and the rabbi's throwing out what a trivial revolution of a complex problem. [laughter] and you feel that way when you read these briefs. because the jurisprudence of freedom of speech, the jurisprudence of how you reconcile the free exercise clause with the establishment clause, with the general presumption in favor of governmental regulations so obscure and so difficult that no one can predict the outcome of this case with any certainty. i can predict one outcome. >> what is that? >> and i will predict that no intelligent, reasonable person will want to distinguish between a business owned by an individual and a business which has become an s corporation. i find that to be ap absurd argument -- an absurd argument made by the government. i thought the government's brief on that issue was trivial and silly. and for me, the issue of whether you can do it through a
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corporation or individually is a religious issue, is a religious issue. if your religion tells you that creating a corporation won't allow you to circumvent your general religious obligations, you're bound by that. in fact, yesterday i called a good friend of mine who's a very distinguished rabbi, and i asked him the following question. i said, what if i own a store and i want to open it up on the sabbath, and i'm not allowed as a j well,ew, what if i become as corporation and decide that the s corporation will open a store on the sabbath? he said, don't be ridiculous. you can't do that. you are the corporation, and the corporation is you. that's a religious principle, and it seems to me if the court were to in any way try to undercut that religious principle by citing state law of what a corporation is or blackstone as to what a corporation is, they would be falling into the trap of themselves violating the free exercise of religion clause.
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after that i have some more difficulties which let's discuss. >> very good. how about a round of applause for that? beautiful. [applause] that was extraordinary. we're going to see if we can reduce the skepticism level. [laughter] and i want alan to leave here a believer, at least a believer in the religious freedom restoration act that congress passed by an overwhelming margin. so let me put that ball in play, and i know we'll have a panel that's specifically talking about the case. but i think every american who loves freedom should be applauding the statute that is at issue tomorrow in the hobby lobby case. the religious freedom restoration act, rfra. let me begin the story -- and, again, correct me if i leave something out -- but let me actually begin the story with a case that your father would
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really relate to, brownfeld v. brown. >> yep, yep. >> a warren court decision that held that abraham brownfeld could be held criminally liable as an orthodox jew for keeping his store open on sunday. now, let the record show that the commonwealth of pennsylvania passed the law, did not historically have a sunday closing law. why, perhaps? because the commonwealth of pennsylvania had a pretty good record with respect to respecting religious liberty given it great history. but for whatever reason, the commonwealth passes a sunday closing law, and here's the key: does not create an exemption for otter or docks jews -- orthodox jews, you've just got to close. and so abraham brownfeld, who owned a store along with other orthodox jews, said in this really imperils our financial -- really our wherewithal, period. it's not just reducing our
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profitability. the competition's open on sunday, etc. -- is open on saturday, so we need to be able to do this. the supreme court speaking through the voice of chief justice earl warren, ordinarily a friend of liberty, said, listen, this is up to legislature. and if you want an exemption, a religious exemption, go to harrisburg and do your best. but we're not going to interfere with the judgment of the legislature. two years go be by, alan, and then in a subsequent case called scherr bert v. werner involving a seventh day adventist, right? so she cannot work on her sabbath, right? and she is told by her employer, a textile mill in south carolina, listen, you've got to work on saturday, or you're out of here, and she eventually said i guess i'm out of here. she sought unemployment compensation, the state of south carolina denied it. ultimately, it goes up to the supreme court. and the supreme court said that
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because she is essentially being penalized for the exercise of her religious practice finish she's not prevented from going to church, whatever, or her expression, but this practice of hers -- namely the, to honor the sabbath by not working -- is being infringed by the state. the state must come forward with a compelling, earlier part of the conversation, a reasoned justification of the highest order in order to overcome that claim of religious liberty. the state came up, well, we're worried that people will be malingerers, whatever, they'll pretend they're religious, it'll be bad for our economy. whatever the arguments were were considered by a super majority of the supreme court an utter make weight. so the supreme court speaking through the voice of william brennan two years after brownfeld v. brown upheld that claim of religious liberty. alan, something happened at the supreme court, and someone knows what happened at the supreme
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court because a very persuasive justice named william j. brennan who had been in dissent in the brownfeld case was now writing the majority opinion for the or warren court. is that too much law? did everybody kind of follow that? >> okay. so that's the case offer sherbe. i'm talking about rfra, religious freedom restoration act, reaches back into time and says we like the warren approach. gee, that sounds like a bunch of ds versus rs. my dear friends, the house of representatives -- we have congressman flores here, thank you for all you do for our institution at baylor. the house of representatives unanimously passed rfra. you say, well, it must have been filibustered on the senate. well, there was a history. the senate passed it 97-3.
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president clinton signed it into law during his first year in office. in november of 1993. and his signing statement was so powerful, it was emotional. and he referred to a book at that point a recent book by a yale -- sorry i mentioned yale. [laughter] >> i went there. >> that's right. [laughter] i'm not sorry to mention it. bow wow yale. okay, bulldogs. and he mentioned steven carter of the yale law school, and his book the culture of disbelief. and it is how american culture, the elite culture is seeking to trivialize religion and to keep it out of the public square. i see some people nodding. yeah, you've seen that, haven't you? let's just keep it out of the public square. in other words, martin luther king jr. should never talk about religion. keep it out of the public square. and president clinton talked
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about in signing this law into law, this measure into law, talked eloquently about religious freedom is our first freedom. the religious freedom restoration act is meant to protect us as individuals including s corporations. alan, reflections on what i just call rfra's journey. >> i left out the pay owety case -- peyote case, but in short -- >> it didn't have the constitutional power to do that, but it has apply to the federal government to say, supreme court, we do not like your decision in the case of the native mesh church of -- native american church of peyote because you did not hold the government to the kind of standard that sherbet did or the supreme court in wisconsin v. is the yoder involving an amish family that said we really
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cannot allow our child to remain in the public schools of wisconsin after the eighth grade. they need to be reintegrated into the community. a very eloquent, partial dissent by william o. douglas who said i need to hear the testimony of the children. one testified said, yes, this is what i want to do, i want to be part of the amish community. and the congress of the united states overwhelmingly rebuked the supreme court of the united states and, essentially, restored the standard that the court had rejected in the peyote case. >> well, i actually worked on drafting some of the language of the religious restoration act and very, very strongly support it. one of the cases that led to it was also the case of a jewish psychologist who had testified wearing a -- [inaudible] and had been told he couldn't wear it, and the supreme court, in an opinion by chief justice rehnquist, affirmed that. and so this was a situation where many in the jewish community, many in christian
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communities all got together. and beauty of the act and some of the court decisions that have come afterward is that they really do focus on minority religions; the hialeah case where they sacrifice chickens, the amish cases, other cases. these are not majority religions. and so there really is no conflict in those cases at all between the fear of establishment and the free exercise. where i think we differ is when you use a phrase as broad as "religion in the public square." and here's my take on that, and it will be different from many of your take. so two nights from now i'm going to be speaking to a group in new york. it's a very orthodox jewish group that puts up menorahs every year at hanukkah time. they are going to put up the world's largest menorah right outside the plaza hotel, and they're going to have dignitaries light one candle.
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and every year they ask me to light the candle. and i, every year, draw the same distinction. if this is a privately-funded menorah and if it's on private land or land that is equally available to all groups, then i will light one of the candles. on the other hand, if the government builds the menorah and it's a government decision to promote this particular religious exercise, i will respectfully decline from participating. so i think when we use the term "religion in the public square," we have to distinguish. martin luther king, of course, should never be prohibited from talking religiously, nor should i, nor should you. that's part of our not only free exercise of relugs, but freedom -- of religion, but freedom of expression. it's a lot harder when you ask yourself the question, should congress pay for an official chaplain which it selects based on religious views?
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and my answer to that would be be we were starting out anew, you would say the answer to that is clear and should be, no, we're not starting out on a tab la raza. there is a history that goes back to the beginnings of the republic of congressional chaplains doing that kind of thing. of course, congressmen, senators are all momentums, and they're not -- all adulters, and they're -- adult, and they're not going to be influenced by a chaplain saying a few words before the congress or the senate begins. extrapolate that and put it to 6 and 7-year-old children in school who want to be like their friends, who don't want to be minorities. my wife grew up as a jewish woman in charleston, south carolina, where she went to public elementary school and a christian high school because it was the best high school. she said prayers both in the public school and in the private school. the private school, of course, she chose to go to a christian school. she balanced on the one hand the
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excellence of the education against feeling a little isolated. her parents decided she was 14, 15 years old. that was a balance that would be healthy for her, to see other people and other views and other perspectives. she would have made a different choice, i think, as a 6-year-old or a 7-year-old. so i think these are very, very hard questions when it comes to the public square. when it comes to issues like whether or not a s corporation, family-owned corporation in a wonderful business should be allowed to be exempted from providing a service that perhaps many of the employees would benefit from and would use, i think that's a much more complicated and difficult question. i would look for a middle ground. i would look for a way of finding a way to not ask the green family or any other family to compromise their religious views, but there are a few
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principles that have to be in operation. number one, nobody should ever profit financially, ever profit financially from being accommodated. that is, if you're accommodated, you shouldn't benefit. you shouldn't gain any financial benefit from that. so there has to be a way of making you pay what you would pay, but for your religious views but in a way that's consistent with your religious views. and that is a kind of accommodation that, i think, makes a lot of sense. now, the next question is, should you ever have to pay to exercise your religious views? that's a complicated question. we all know whether you read about the life of jesus or the life of other religious leaders, it's not easy to be religious. it's not easy to be a person of god. and it's not inexpensive either. for most of my life, i ate only kosher food. kosher food was 20% more expensive than nonkosher food. we regarded it as a tax.
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it was worth paying because we wanted to eat kosher. i would never dream of asking the government to subsidize that 20%. i also, myself, don't believe that the government should be subsidizing purely religious education. now, there are hard questions what that means. they should provide police protection for schools, fire protection for schools, perhaps secular textbooks, a range. again, i think what we need to do is search for accommodation at every stage. try to figure out ways of not requiring you to compromise at all with your religious views, but making sure that it also doesn't hurt those whose religious views are different from yours. i want to make sure that your 13,000 employees or however many of them are women that would take advantage of the four types of contraceptive devices aren't in any way disadvantaged by exercise of your religious views. i am confident this can be
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achieved. and i think it would be useful to try to find middle ways. i don't like to see conflicts between a religion and governance. they are very dangerous historically. and it's far better if we can find methods by which we can work out these accommodations. and i would like to throw it back at you and ask you, ken, what kind of accommodation would you think short of the ultimate accommodation, just saying to the green family and the corporation you're out, you're exempt, what kind of accommodation would you think would be consistent with the policies underlying the religious restoration act? >> well, in fact, the government provides, as you know, alan, for a number of exemptions. so there's statutory exemptions as well as the administration has granted additional time and the like. and so there are mechanisms that achieve, i think, this balance
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of accommodation that you're talking about whether it is, in fact, a government fund or government provided access to what the four methods that the greens oppose as a matter of conscience. >> may i press you on that. as a deeply religious person who supports the right to life, wouldn't you be at least slightly offended -- and you would throw the question also to the green family for later -- if the government paid women to use abortion methods or methods that you believe are abortion methods, wouldn't you be uncomfortable with that? i know in your brief you say that is an appropriate accommodation, to have the government directly pay for these services. doesn't that, does that not raise any level of discomfort? is. >> but it's at a different level because it's no longer your freedom of conscience that is being -- >> you're paying taxes. >> but we might oppose any number of things whether it's
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the war in afghanistan or other kinds of policies. then it becomes a matter to the democracy for our elected representatives to work through. what is beautiful about the religious freedom restoration act is that congress has spoken with enormous unanimity and supported by president clinton saying, government, please respect these religious views. no matter how important the public policy is, it's got to be a policy of the very highest order. and on view, alan, with respect to the cases the government has a huge achilles heel quite apart from this corporate argument which you and i agree is very, very weak, and that is there are exemptions galore. there are grandfathered plans. so many millions of americans aren't protected in the way that you feel is very important. are your fourth amendment rights being violated here? [laughter] >> i'm consenting. [laughter]
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i welcome it. >> very good. >> because my first amendment rights would be compromised -- [laughter] >> i would never think of suggesting that alan does not have unfettered freedom of speech. [laughter] certainly c-span shall not. and i want to come back to your wonderful statement about accommodation. you want to find this middle ground, and you're using the word "accommodation" and exactly so. so i think here's another area where once again we are fellow, co-believers. is the religious freedom restoration act on its face unconstitutional as respecting an establishment of -- >> no, i don't think so. >> will well, could i just add there's one justice now retired on the supreme court who concluded that rfra was a law that congress passed respecting the establishment of religious in light of subsequent appointments and so forth, all
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nine current members of the supreme court -- unless she/he changes his or her mind -- would say, absolutely not. it's in the finest traditions of america to accommodate, to try to accommodate. but there's a limit, isn't there, alan? because if the accommodation reaches the -- and this is a judgment call -- of really burdening the folks who are not being accommodated. >> right. and i think the other limit is this, you have to interpret the act consistent with what the supreme court held in the seager case. and that is religion has to be defined very broadly to include any philosophical view that holds a place similar or comparable to what religion holds in the life of people who are traditionally religious. think it was oliver wendell holmes who used the phrase, "the can't helps." you can't help but believe in the right to life, i can't help but believe in other certain
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rights. i don't call them religious views. so we will have, at some point, a dispute about what to define what is a religious view and what is not. and i think one has to do it very broadly in order to avoid an establishment problem because although we know that the establishment clause was not intended originally to say you can't give any preference to religion in general over secular life, it's been -- it's come to be interpreted that way. it was originally, obviously, a limitation on the federal government not to establish a particular federal church at the time the bill of rights was enacted. six states, i think, had established churches, and it wasn't seen as a violation of the establishment clause. but that's changed over time. and i worked on the language of the religious restoration act if an effort to avoid establishment problems. that was my particular task, how to draft a statute like this
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that won't run into establishment problems, because that's one of the hard jurisprudential conflicts, how you in any way enforce your free exercise of religion without preferring religion over other views of life. >> in our time remaining, and we look forward to the audience participating, alan, let's -- we have among other very distinguished guests here a wonderful commentator on the culture including globally, and oz asked a question in one of his recent books, "the global public square," how can we live together with our deep, deep difference, our deepest differences? and in "culture of disbelief" and then your colleague for a few years, noah feldman in his book, "divided by god," -- >> right, right. >> -- there's this search, this eagerness to find how can we, given our diversity culturally,
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religiously and so forth, live together peacefully, resolve -- and not by going to litigation, but just resolve culturally our differences peacefully? and i think a growing sense that, you know, if you were a person of deep religious faith, you're in the crosshairs now. there are people here from different religious communities who feel genuinely embattled in terms of freedom of conscience. and so what i want to now lift up in terms of the culture, what i think the supreme court did in a great iconic case called west virginia board of education v. barnett is to say the government cannot interfere with your freedom of belief. if there is any fixed star in our constitutional constellation, the great words of robert jackson, it is that no official high or petty can determine what is orthodox in matters of including, obviously,
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religion, but including politics and the like. and that is so bedrock, i think, if the american culture. -- in the american culture. but increasingly, people of faith are saying i'm not so sure that west virginia board of education v. barnett is in the culture anymore. it's not, perhaps, in the politics anymore at least to the extent that it was a sense of, as the it were, 'em battlement. what's your sense of that? has the culture shifted in terms of what, in fact, was said if i may say so in werner in dissent, the two justices who dissented in that particular case said it was, essentially, a warning of what they called the march of secularism. that american culture and american law at its best can, in fact, be accommodationist. >> okay. so i'm going to now point my finger at you, and i'm going to say it's your fault. you haven't done a good enough job in the marketplace of ideas
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to persuade americans of your point of view. your -- i agree with you. i think you're losing the battle in, among young people. if you look at what's going on in many colleges and universities, there is increasing disdain for religion. i don't like it. i don't like it. i find america to be the best country in the world in terms of not having these divisions. when i, for example, the two countries i know best are the united states and israel. and israel is having a terrible problem, because if you're not very religious in israel, you're anti-religious. and the reason for that, i believe, is because the state has played too great a role in promoting religion. separation of church and state is good for religion. william said that, jefferson said that -- i don't want to put myself in those categories -- [laughter] i'm hoping ken starr will say it
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by the end of today. >> amen. i think you should applaud what alan just said. [applause] >> it's very, very important. and in this country nobody can tell me what i have to do and don't have to do. i love religion. i love religions that i'm not part of. i admire it. i read religious books. i listen to the radio show, "religion on the line." i'm involved in religion in many, many ways. if i lived in a country where they told me what religion i had to practice and how i had to practice it, i'd be religion's worst enemy. i would be fighting it tooth and nail, and i want to keep it that way. so my view is don't can ask for the help of government. don't ask for the help of the state. do a better job. go out there and make religion more relevant to the life of young people. don't create conflicts between the rights of women and the rights of religion, between the rights of gays and the rights of
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religion, between the rights of other dissenters and the rights of religion. you're going to lose many of those battles, unfortunately. you have to figure out a way, and it's your job. you have to figure out a way of making people love what you believe in and love what you're doing. we were just having a conversation before this began with two wonderful people who were evangelical ministers in jordan and had been arrested in jordan. and i was telling them that i think jews sometimes have a hard problem understanding that christianity ask judaism are very different. christianity is an evangelical religion. your job is to convert me. as a jew, my job is not to convert you. we have different religious perspectives, and jews have to recognize that it's part of your religious freedom to try to convert us. we should respect it, we should admire it, we should welcome it. you think so well of us that you
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really want us to become part of you. thank you. but no thanks, i'm going to stick with my -- [laughter] but i really, really take it as a compliment. and there has to be more of that kind of dialogue and understanding. but the state can't pick up the slack. and if there is, in fact, an emerging culture of secularism, it's not something the state can get involved in. as long as it's not the state's fault. now, it's certainly not the legislature's fault, because legislatures are sympathetic generally to religion. in fact, if this case tomorrow turns on the legislative intent, the government has no chance of prevailing because any rational person will know that the legislature intended to be consistent with the broader scope of the religious restoration act. as you said, 98 to, 97-3, president signs it, senate, congress, everybody. you're always going to get accommodation from elected representatives. the court has been, you might
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say, a secularizing influence. that certainly is a realistic assessment. but i don't think it's had all that much influence on changing american culture. look, it's happening all over the world. europe is regarded today as a postchristian area of the world. france, england. you go to, you go to notre dame today, and on a sunday morning -- wherever i travel in the morning, i go to church on sunday morning. not to pray, but i love church services. and i love to see the most beautiful buildings in the world in use. when i go to a church service at notre dame, there are 15 jewish tourists, a couple of muslim tourists and two or three catholics praying in the front. the places are absolutely empty. >> you need to come to baylor. >> all right. that would be great, i would love to. [applause] my point, though, is a more general one and that is you have the responsibility of promoting your view of this society t, and
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you can't ask the state to help you. >> on freedom -- i think that's, applause, if i may say so. [applause] met me pick up on your comments about -- let me pick up on your comments about as long as in terms of certain issues, gay and lesbian rights, reproductive freedom, what many view as, you know, the taking of human life, is there, in your view, i don't want to call it middle ground, but is there cultural room for us, is there a corridor that we can all say, yes, we're comfortable in the corridor even with our disagreements as long as we respect freedom of conscience? let's just use the example of catholic hospitals or orthodox jewish doctors declining to perform certain kinds of procedures. now, that interferes with
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reproductive freedom, and you feel very strongly about that. but what do we do with that situation in terms of the role of the state? should the state be able to to command dr. goldman, the physician -- he was a psychiatrist or psychologist, but let's say he was ob/gyn -- >> uh-huh. >> -- should the government be able to say you must participate in a procedure that utterly offends your conscience? should the federal government be -- >> i think the answer is, no, except if the person is an emergency ward doctor and has, somebody comes in in an emergency and there's no realistic alternative. >> but as a general matter. >> as a general rule, there should be that kind of accommodation. now, let's move to another area. what if a person, as these cases are now pending in the west of the united states, what if a person says i'm so fended by the gay lifestyle that my religion precludes me from delivering
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flowers to a gay wedding, or i had a case some years ago where a woman refused to, she was a dental resident, refused to perform dentistry on a gay man. in her case, she was just fearful she would get aids. it was a kind of is stereotype that she had. the man didn't have aids, but she was fearful of it. and so there you get a conflict between secular antidiscrimination laws and religious feelings. my gut tells me there's a big difference between making a doctor perform an abortion, which i would never think would be ever proper under any circumstances except, as i said, in the emergency situation and requiring somebody not to discriminate against a gay person or not to discriminate against an atheist or somebody else who fends them deeply -- who offends them deeply to their religious core. >> and what about an orthodox
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jewish rabbi or an evangelical minister, pastor or a catholic priest who cannot in conscience even under the law of the state where the person is serving in ministry cannot, in fact, perform in conscience a same-sex marriage? >> oh, i think that, clearly, nobody should be required to perform a same-sex marriage. that's, you know, marriage today is a religious phenomenon. i mean, my own view -- i don't know if you know my own view, i've written about this extensively. i would like to see the state get out of the marriage business. the state's not in the baptism business, it's not in the circumcision business, it shouldn't be in the marriage business. marriage is a sacrament -- >> i think we're hearing some amens. [applause] >> and my view is that everybody should be able to get a civil union which obliges you to do
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certain things that you're responsible for and gives you certain tax benefits and disadvantages, and the state benefits and disadvantages. everybody should be able to sign up for that, and then the vast part of us would then go to our church, synagogue or mosque and have a rabbi, minister, an imam perform the religious part of it and, of course, nobody, no religious person should ever be required to perform a marriage that's against their religious views. i would with categorical about that. on the other hand, a person shouldn't go and become a clerk in city hall if he knows that he couldn't marry two men who were gay or two -- or a jewish man to a non-jewish man, to a non-jewish woman. today an orthodox rabbi is forbidden from marrying a jew to a upon the-jew. but, obviously, a civil clerk can't do that. ful if they say it's against my conscience, the answer is get another job. [laughter] you shouldn't be a clerk whose job it is to have to marry
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people regardless of religion. now, of course, they're going to argue tomorrow get another job to you. they're going to argue the constitution doesn't give you the right to be a corporation. it only gives you the right to exercise your freedom of speech, and there's no religious right to be a corporation. so you can easily have your religious rights, just stop being a corporation. i hope that argument loses, because to be a corporation gives you significant economic benefits which would be denied you if you were forbidden from doing that, and i don't think that's an appropriate accommodation. that's too great an accommodation. on the other hand, and here's -- i'm going to finalize that point i was making before. if you get any financial advantage from being able to opt out of the providing of these four different contraceptive or abortion devices, you should have to pay a tax, a general tax
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e give will leapt to the money -- equivalent to the money you've saved so that you don't end up profiting from the accommodation of your religious views. seems to me that's a fair accommodation. >> well, the theme is accommodation, and i hope that everyone of goodwill is impressed by the liberality and generosity of spirit with which alan speaks. i want to come back to oz guinness just for a is second. oz in, again, one of his books is expressing concern that globally the universal declaration of human rights would no longer be accepted. including but not limited to article 18 which is, it's a declaration, but there are international lawyers who say, no, it does have the force of law. but it was a declaration like our declaration of independence. universal declaration of human ri


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