Constitution Day Speaker
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Constitution Day Speaker

August 24, 2019


>>I want to welcome you to the
Seventh Annual David Aldrich Nelson Lecture in Constitutional
Jurisprudence. It’s held every year on
Constitution Day, September 17th. The lecture honors Judge David
Aldrich Nelson who was a charter member of the Alexander Hamilton
Institutes Board of Directors and who served for more than two
decades on the United States Court of Appeals for the Sixth
Circuit. Our event tonight is sponsored
by the Alexander Hamilton Institute and cosponsored by our
very own Center for Statesmanship, Law, and Liberty
here at RIT along with the Political Science Department. I would like to thank Bob
Paquette, the Director of the Alexander
Hamilton Institute for his generous support, my dean, Jamie
Winebrake, my chairman, Sean Sutton for his
continued support. We will continue our
Constitution Day events with a lecture tomorrow on Virtue
Statesmanship in the Constitution from the same
speaker, Bruce Frohnen whom I will
introduce in a moment. Tomorrow’s lecture will be at 4
o’clock in the Skalny Room of the Schmitt Interfaith Center. But tonight, our theme is
religious liberty. After traveling to America in
1831, Alexis de Tocqueville, French
foreign observer observed in his great work “Democracy in
America, a work aptly described as
once the best book on America in democracy that it was quote, the
religious aspect of the country that first struck his eye,
unquote. He noted that the greatest part
of English America he called, he referred to America
Anglo-America or English America, Tocqueville noted it’s
been people by men who after having escaped the authority of
the Pope did not submit to any religious supremacy. He therefore brought to the New
World a Christianity that I cannot depict better than to
call it Democratic and Republican, unquote. The religious foundations of
America’s origins are well-known, the Puritans in
Massachusetts Bay continuing the Protestant Reformation in the
New World strove to build a city upon a hill an enduring symbol,
in and of ourselves understanding. The Pilgrims and Plymouth Rock,
a more radical Puritan sect established the Mayflower
Compact, the first written constitution
in the New World based on consent. Pennsylvania was a
self-described holy experiment started by the Quakers. Rhode Island once referred to as
the sewer of New England was an experiment in the separation of
church and state, the phrase later used by
Jefferson, separation of church and state,
was coined by Roger Williams, the founder of the colony of
Rhode Island. Maryland was a Catholic Haven
which passed the Toleration Act as early as 1649 that included
the phrase, the “Free Exercise of Religion.” We may all be familiar with
Benjamin Franklin’s proposal for a civil religion that would
strengthen the country’s political institutions in his
autobiography. America became a refuge and
haven for those seeking to practice their religious
liberty. Religious diversity at least
amongst Christian sects was a fact, a notable feature of the
colonies and quite an achievement given the wars of
religion that had devastated Europe a century before. Unifying experience of the great
awakening prepared Americans for the revolution. Yet America was also profoundly
influenced by a more secular strand of enlightenment
rationalism. Jefferson, for example, was a
severe critic of sectarianism, of religious bigotry and
intolerance. He and James Madison famously
led the fight to disestablish the Episcopal Church in Virginia
and to defeat attacks for the non-denominational support of
religion. Jefferson, of course, in his
famous letter to the Danbury Baptist describes the
Constitution is erecting a wall of separation between church and
state. Well the declaration, the
foundation of the American experiment I would argue makes
four references to the divinity. The Constitution never mentions
God or religion except in prohibiting religious tests. Then again the Bill of Rights,
First 10 Amendments to the Constitution includes religion
as its first freedom, the first freedom of the First
Amendment. There are two notable clauses
that relate to religious liberty that we will discuss tonight. The non-establishment clause and
the Free Exercise Clause. Indeed, there’s a tension
between these two provisions. Perhaps this tension has been
vital to American liberty, one could make the argument. If construed broadly, the
non-establishment clause in banning religion from the public
square might infringe upon the free exercise guarantee and vice
versa. That is to say the granting of
an exemption for the sake of conscience, the free exercise of
religion may in effect constitute the preference of one
religion over another, thereby undermining the very
equality that the establishment clause promises to uphold. Interestingly enough, the same
Congress that passed the First Amendment also approved the
Washington’s request for a National Day of Prayer and
Thanksgiving. So we gather here tonight on
Constitution Day to reflect upon the legacy of religious liberty, the first
liberty of our Bill of Rights. Our keynote, Bruce Frohnen will
provide historical overview of the struggle for religious
liberty in America and a consideration of some of the
core principles of religious liberty. After his presentation, we will
analyze briefly the Supreme Court’s application or lack
thereof of these principles in two recent cases, Burwell versus
Hobby Lobby and town of Greece versus Galloway, the case right
from our own backyard. We’ll conclude with a question
and answer session, so please hold all your
questions to the end. And the panelist will do their
best to answer them. In the 21st century, our
century, religious bigotry, intolerance
and persecution have far from vanished. Consider the recent genocide
campaign against Middle Eastern Christians, the resurgence of
anti-semitism in Europe and sectarian strife between Sunni
and Shia Muslims. America remains a haven. America remains a haven and can
America still be considered the land of the free in this regard. Are the Constitution and the
Bill of Rights fitted for an increasingly multicultural and
secular nation? Now I’d like to introduce our
keynote speaker. Dr. Bruce Frohnen has served a
Visiting Scholar with the John Hopkins School of Advanced
International Studies. He was the Charles Evan Hughes
Professor of Jurisprudence at Colgate University last year. He was a Legislative Aide to
United States Senator Spencer Abraham for Michigan and a
Senior Fellow at the Liberty Fund. Bruce is prolific author. He has edited or authored 14
books. Two of his volumes, “The
American Nation Primary Sources and Rethinking Rights” were
named outstanding academic titles by choice. His articles have appeared in
journals including the George Washington Law Review, the
Harvard Journal of Law and Public Policy and the American
Journal of the Jurisprudence. His research interest focused on
religion in American public life, the nature development and
prospects for constitutionalism and human rights. He holds a JD from Emory
University School of Law and a PhD in Government from Cornell
University. He is currently teaching at Ohio
Northern University Law School. His most recent book,
“Constitutional Morality, Structure, Norms and the Rule of
Law” will be released by Harvard University Press. Please welcome Bruce Frohnen. [ Applause ]>>Thanks so much Joe. Thank you for that kind
introduction and for all the work that I know you, RIT, and
the Center for the Studies of Statesmanship have done. Thank you for bringing me here. Thanks also to Bob Paquette and
the Alexander Hamilton Institute, I greatly appreciate
and I’m honored by presenting the lecture sponsored,
cosponsored by the institute. Thank you all for being here. We need to talk today a little
bit about religious freedom in Constitution. And I hope that we’ll remember
that what we are talking about in part at least is religion,
which is to say a social practice. Not just free
exercise by individuals. Not just the lack of
establishment by the government but the practice by groups of
like-minded persons of worship and ways of life. It’s this understanding that I
think it’s necessary in order to understand what lies behind more
recent Supreme Court decisions and actions in our broader
culture which seem much more since the era after World War
II, seemed much more to be concerned
with the relationship between the federal government and each
of us as individuals, either limiting us in our
activities so that they don’t harm others or protecting us
individuals from potential tyranny, from localities,
states, and various social groupings
including religion. It is an interesting turn to
long tradition in which our pluralistic society has been
seen as being made up by not just individuals but the
fundamental constitutive groups that individuals formed and are
born into and in which they live the bulk of their lives. I want to just briefly
mentioned one of the many issues that Professor Fornieri
mentioned at the beginning during his introduction. He talked about the Declaration
of Independence, which I know he considers foundational and of
extreme importance that that document makes of the deity in
contrast to the lack of such mentions in the United States
Federal Constitution. And I think it is in fact a
highly interesting and useful contrast to draw. And it points out something that
I think is far too often overlooked in discussion of our
Constitution more generally but in particular in relation to
things like religious freedom. Namely that there was a
distinction which the founders of our country recognized which
for a variety of reasons is no longer generally recognized
between those 13 independent states declared independent by
that first document, which were seen as natural,
organic, historically rooted, focuses of
attention and loyalty in which people lived. And the more distant, more
artificial, more mechanical, hence more
limited governments at the federal level which was intended
from its beginning to have a much smaller impact on the lives
that Americans would live. Now, in discussing the set of
issues, I’d like to go back to the
beginning or at least as close the beginning as make sense in
the American context. So, in the name of God, amen. No, I’m not about to give you a
sermon, I might be accused to preaching
particularly by my children but that’s not my purpose here. That is in fact a quotation. It is the beginning of the
beginning in some ways because it is the opening line for the
Mayflower Compact. The first line of the first
constitutional document applied to the English settlers in North
America. In fact, the Mayflower Compact
carried on a long tradition going back some hundred years in
the mother country where at the calvenus [phonetic] dissenters
forged church covenants, they were called. Later they became constitutional
documents in which they would pledge to one another to walk in
the ways of their lord together in order to form communities
that could survive the intolerance of the Anglican
establishment in Britain. They forged these communities by
which they would elect their own ministers, by which they would
regulate their own conduct among one another in religion but also
in economics and in social life. So that they could flourish as a
group worshiping God in the way that they chose but also leading
the kinds of lives that they wanted to and flourishing as a
community. That document, the Mayflower
Compact by which the Puritans formed a colony in the New World
continues that those who signed the document quoting, “Having
undertaken for the Glory of God, and Advancement of the Christian
Faith, and the Honour of our King and
Country, and afford we could do colony
and we do quoting, “Solemnly and mutually, in the
presence of God, and one another, covenants and
combine ourselves together into a civil body politic for our
better ordering and preservation and furtherance of these ends. And by virtue thereof to enact,
constitute, and frame, such just and equal
laws, ordinances, acts, constitutions,
and offices, from time to time, as shall be
thought most meet and convenient for the general good of the
colony unto which we promise all due submission and obedience.” So we have here, there. OK. What can well be said to be the
first constitution of the English settlers. There had been company charters
before this, there were also in Virginia
martial laws. Yes, he said martial as in
military as in lots of death penalties. Jamestown was run on the
somewhat different model, the settlers were there for
financial reasons and they weren’t behaving well. So they ended up being ruled
according to martial law for quite sometime. But it was this, the Mayflower
Compact that brought to the continent the constitutional
tradition that had in fact developed in Great Britain. As a Constitution, the Mayflower
Compact bounded the Puritan colonists to work for the common
good and to abide by the laws which were enacted by the
government that was there by established. As a religious compact which it
also was, that document bound its people
together as a people in the name of God. So we have then with the
Puritans a very self-consciously religious community using all
the forms of constitutional government with the purpose of
founding a society that would be ruled according to law but that
had as a necessary witness and party to the contract, God. All right. Let us then fast forward a bit
to the era of the American Revolution in which the
colonists were fighting for independence from Great Britain. We know that a constitution for
this United States came out only after that revolution had been
completed. But before the National
Constitution was drafted, there was another conflict,
there were in fact many conflicts. But the one I’m thinking about
is the one in Virginia. The newly independent state
there was considering the law that would tax all Virginians in
order to pay Anglican and only Anglican teachers of religion
for the state. Now in petitioning the assembly
to reject this legislation, James Madison who some of you
may know as the Father of the Constitution laid out his
reasons for–for opposing this law, for delivering this
memorial and remonstrance against religious assessments. He argued that quoting,
“Religion or the duty which we owe to our Creator and the
manner of discharging it, can be directed only by reason
and conviction that is, not by force or violence. The religion then of every man,”
Madison said, “Must be left to the conviction
and conscience of every man.” Individualism here, every man. And it is the right of every man
to exercise it as these, that is conscience and
conviction may dictate. So religion, Madison was saying
is a matter of conscience and personal belief. It isn’t is viewed a
fundamentally individual practice. It cannot be directed
by force only by reason aimed again at particular individuals. So it’s wrong, ineffective and
an insult to our Creator in Madison’s view to use the state,
to force people promote something in which they do not
in fact believe. These then are two polls between
which religious debates in the United States could be seen as
radiating for most of our history. On the one side, those who
insisted religion is the basis of that society, its very
purpose for being that we become part of a society, first and
foremost, by sharing the commitment to a
particular way of life and a way of life rooted in religious
belief and practice. The individualism of Madison, no
doubt more appealing to college students such as yourselves was
in start a contrast to the community centered views of
religious groups active during the formative years of the
Republic. But still, there is in Madison’s
memorial and remonstrance a clear reference and emphasis
upon the duty each of his owe to God. That is a specific deity. It both coexisted for many
decades before the war for independence and after the
formation of the Republic, how did this happened? How was this in fact possible? We may begin with the words of
the Constitution or at least the Bill of Rights in regards to
religion, they’re brief and found in the
First Amendment. Congress shall make no law
respecting an establishment of religion, or prohibiting the
free exercise thereof. We can be pretty what these
words meant at the time the Bill of Rights was appended to the
Constitution. What does it mean for Congress
to make no law, respecting an establishment of
religion? It means that Congress shall
neither establish nor disestablish any religion. It’s important to keep in mind
here that a number of states, seven is probably the most
accurate number had established religions at the time of the
founding and for decades thereafter. Massachusetts for example had an
established religion well into the 1830s, 1833 is usually given
is the date of disestablishment, that is close to half a century
after the Constitution came into existence. What we had then was a split in
terms of the views of what the government was to do in regard
to religion. There was one standard for the
states and a different standard for the federal government. The states were again organic,
natural forms of government in which people lived for the vast
bulk of their lives. They were in charge of safety,
health, the welfare of their citizens. They were considered to have the
legitimacy to pass upon, to enact, and to deal with
fundamental social, political, economic, and
religious issues, issues on which communities were
deemed to be competent to decide for themselves as communities. The federal government on the
other hand was an artificial construct established for very
specific and limited reasons. The federal government became
necessary because under the Articles of Confederation, the
states found that they were a feckless and embarrassed group
of states. They had no respect on the
international stage, they needed help in terms of
foreign policy, in terms of defense and they
also needed to establish a common market of sorts among the
states to end the taxing of goods from one state traveling
into another. And to establish certain
fundamental institutions, post roads for example,
necessary for the country to function as a single economy. This kind of construct even
though at a number of ways it would act to directly on
citizens lacked the purpose and it lacked the legitimacy to
determine for a community so vast and so spread out. Yes, so pluralistic but also
simply so spread out as a relatively unpopulated nation in
a time of horses and buggies was. It lacked the legitimacy and the
means to act as a single community legislating on
fundamental issues of the social makeup of the people. So, one thing we know about the
establishment clause is that it was aimed specifically at
preventing interference from the federal government and what was
going out at the state. But another question which
arises at this point is just what is it we mean by
establishment. But I think it’s necessary for
us to talk about this because this federal structure would end
up being severely undermined if not done away with by the middle
of the 20th century. And so what does it mean to have
an established religion. Well the prime example, the
paradigmatic example here because it is the source of,
well, America would be Britain. And in England, the established
church was truly established. The monarch was not only the
secular ruler but also the ruler of the church. Those in high office and
many–and no office at all had to declare, they had to swear an
oath of loyalty to the king, not merely as king but as head
of the church. The monarchy was responsible for
appointing potentially dismissing and controlling high
religious officers, bishops, it controlled the
liturgy. It made pronouncements through
the pulpit. The church was to maintain
records, birth records, baptismal
records, marriage records on behalf of
the state. Taxes were collected from
everyone in order to fund the one church and only the one
church. One was to make regular
attendance in the one church on paying of fines, potentially
very heavy fines, non-payment of which can land
you in jail. Oh yes. And if you are a Catholic or a
Jew, you couldn’t worship. Public worship and either of
these religions was illegal. And point of fact, a number of
priests were executed for fomenting what was considered to
be treason. So which we have then in the
British example and many of these provisions lasted well
into the 19th century. What you had in the British
example was a clear establishment of a religion, OK? Intermingling of secular and
religious government intended to make sure that people belongs
and supported the one official religion. Things were a little different
in America even before the revolution. All right, Now you did have in some of the
southern colonies a kind of Anglican establishment. It was whoever much weaker and
part because people were just too spread out, and in part
because people just wouldn’t put up with as much from
their government. You did nonetheless have for a
time established religions in various colonies. One of the great fears that
spurred the American Revolution was that England might actually
send over a bishop, an appointee of the crown who
would serve to instill discipline in this undisciplined
Americans. So it was sort of established
but, let’s just say, not to the
English extent. Now this was only in the south
and the Anglican Church after the revolution when it became
the Episcopalian Church lost most of its public legitimacy. Most Anglican priests were
Tories, that is to say they opposed the
war for independence, so it was not long after
independence that the Anglican Church, the Episcopalian Church
lost its primary support from various state governments. There was however another model
among many, an important New England model
is presented by Massachusetts. In many ways the most American
model and that it was highly localist. If you lived in Massachusetts,
the rule was and it was a state rule, statutory rule, legal
rule. Find your own preacher, in
essence. Because the rule was you had to
find a minister as a community pay and support that minister
and the teaching of your children, it would include the
religious teacher. The point was
communities, townships, villages, chose in
essence their own religion to establish. So you had established religions
in the various local communities. Now most of them were a
congregationalist which is, you know, the Puritan religion
but not all of them. There were some Unitarians, some
Presbyterians and things such as that. There was a state and
established religion that used public funds to support
specifically religious activities and it was limited to
a church, although in this case, it was
limited to a church determined by the locality. You also had a number of other
practices such as a requirement that those who sought to serve
in some public office, sometimes only elective office,
sometimes something is basic as on a jury would have to make
some sort of religious oath. This was in fact one the things
that the federal constitution not this Bill of Rights but in
the actual original document said we’re not going to do with
the federal level anymore because at the federal level we,
being a more limited distant government aren’t going to
depend on these things. But at the state level in most
of the states, there was a requirement that you
subscribe to some set of religious beliefs anywhere from
a basic vague deism in that Quaker land of Pennsylvania to
fairly specific provisions in some of the other states. So, establishment really could
have teeth, potentially painful teeth. But in the United States, it
tended to be a less strict form of establishment, certainly then
one would find in Europe. In Massachusetts for the most
part what it meant was that citizens had to come up with
some religion for their community and if you didn’t
choose, well then the congregationalists
get it. What there was in general almost
nationally was a kind of generalized support of
Protestantism. The point then is that
constitution decree that the federal government mind its own
business on issues of religion. States were to be left free and
self-governing semi-sovereign communities to regulate religion
and the matter they deemed best. And everything from over to
support for one specific religion, the general
accommodation of Christianity or more general theism to complete
neutrality between religion and non-religion, only this was to
be allowed because it was none of the federal governments
business, period. Individual descent would be
tolerated more or less depending on where you were. Thus, if one was too much of a
dissenter, one would in fact have to follow
Roger Williams and vote with your feet. You could always go to Rhode
Island, the sewer of New England, OK. Obviously now, things have
changed just a little bit since this time. But why, how, and to what
extent, to what effect? Oh, I just briefly in a very
skeletal fashion talk about some of this. The why really is the most
interesting or at least the most overlooked and misunderstood
element here. The United States moved away
from the localist tradition regarding religious
establishment, religious freedom largely out of
the concern to protect American public education. Public schooling is at the
center of religious freedom and issues in the United States. It is today one still hears
about public school prayers and it was during the early 19th
century. American public education, the
significant number of people decided needed to be protected
from outside forces. What were those outside forces? Irish Catholics. In his important book
“Separation of Church and State”, Philip Hamburger who is Jewish
if that means anything to you shows how conflicts over public
funding for religious schools led to a massive shift in
arguments regarding the constitution and religious
establishment. All this took place beginning in
the 1830s which was not coincidentally an era in which
enlightenment ideas had gained some foothold at the state as
well as the national level. There is also of during the
beginning of the wave of Irish immigration. In essence, what happened was
that Protestants shot that Irish Catholics were succeeding in
gaining local public funding for Catholic schools, began arguing
that the Constitution forbids that kind of support. One must keep in mind that the
state-run school is a relatively new development in America, that
for most of our history, schools were run at the very
local level and that even in places like New York City. New York was one of the focal
points of this struggle which you had was a state which would
hand over money to local organizations to run the schools
as they saw fit. So this was a very local set of
issues. It was ironic in fact that these
particular Protestants chose to take offense at the Catholic
inroads because public schools since before the beginning of
the Republic and right up through this time and well into
the 20th century required readings for the King James
Bible on a daily basis and discussions thereof quite often. But, the Protestant activists
argued, Protestantism is not an
established religion, by nature, it cannot be because
Protestantism has no Pope, no hierarchy, no foreign prince. Therefore, it’s OK for schools
to support the Protestant religion because it’s a religion
of many different and sects and no particular doctrine. Proponents of this separation of
church and state put forth the constitutional amendment to ban
the use of public funds for sectarian, meaning Catholic
schools. By now we’re in the late 19th
century a little thing called the civil war set back some of
these issues. And by the late 19th century, we
had a movement toward what were called Blaine Amendments. The Blaine Amendment failed at
the federal level but it was written into a number of state
constitutions. These amendments sought to
change that constitution, to bar support for any
particular disfavored religion maintaining it for a general
Protestantism. The one was not good, the other
was traditional, established and to be continued. Obviously though, that’s not how
things worked out, now is it? This was an attempt and it
helped with the growth of the demand that there be separation. What did happen then? Well, into the 20th century,
most states operated under a theory best described as
accommodation of religion. That is where the federal
government stayed out of religion, states saw themselves
as abiding by a kind of Madisonian respect for
individual conscience by accommodating it in particular
circumstances. The best examples I can give you
are the lack of test oaths for public office and
the fact that Quakers didn’t have to fight in wars because it
was against their religion. This accommodationism did not
extend to banning long standing practices like a local town’s
nativity plays or prayers before the opening of various public
events. But the dominant view of a
Supreme Court since 1947 has been something quite different,
what has been called separationism, one
scholar has called it disestablishment even refers to
it as the disestablishment clause as in separation of
church and state. Of course, the fact the phrase
itself appears nowhere in the constitution. And as Professor Fornieri
pointed out, the wall of separation between
church and state appears to the writings of Roger Williams, a
prominent religious dissenter from the 17th century. It also appears at a letter from
Thomas Jefferson to the Danbury Baptist Church. This letter which was used by
Jefferson in his fight in particular with New England
clergy during the election of 1800 was a declaration on
Jefferson’s part that the federal government should not be
seen as being involved with religion in one way or another. Jefferson’s own career is
illuminating here after when he was elected president. Jefferson refused to follow
Washington and Adams in declaring things like days of
fasting and days of thanksgiving. This was in contradistinction to
his practice when he was governor of Virginia. Where he not only announced such
days but he announced such days along with penalties for
ministers who refused to do as they were bid that is to call
the congregations together, OK. So what really
changed? How did we come from a time when
religious freedom meant localism, local rules to a time
when today, we have a movement toward
disestablishment? A couple of things happened. Most importantly by proceeding
some of what we’re talking about was a case in 1940, Cantwell
against Connecticut. This was a Supreme Court
decision in which the federal government first chose to begin
protecting free exercise of religion on the part of
individuals from states and localities. We begin to see the federal
government intervened between individuals and their local
state more organic governments. Here, we had a town that said
that those who are going to solicit from door to door had to
come in and register. The town wanted to make sure
that there was no fraud going on, that people weren’t fees or
any such thing so you had to come in and register. You had a couple of Jehovah’s
Witnesses who said it was, in fact, against their religion
to come and register with the state. Why would I have to register
with the state in order to proselytize? The court here found that this
was too much of a burden on the religious free exercise of each
Jehovah’s Witnesses, so it struck down this rule. Well, how did it strike down
this rule? I thought there was a separation
between what the federal government could do in the state
local government. A doctrine called incorporation
by which the Supreme Court argues that the rights spelled
out in the Bill of Rights more or less shall be applied to
state and local governments on account of the Fourteenth
Amendment. This was an amendment passed,
brought into law in the aftermath of the civil war
intended–intended to protect freed slaves from potentially
murderous mobs and from laws specifically aimed at
disenfranchising them and keeping them from things like
access to courts. Incorporation has become the law
of the land, is of primary importance to
what’s happening. The state now intervenes. The second thing that happened
in Everson against the Board of Education, it was decided by the
Supreme Court in fact that it was OK for a local school board
to pay for religious kids to go to religious schools. That is pay for their bus fare. Because it was argued, well
look, everybody gets–has to take a
bus. And we would actually be putting
a burden on religion if we didn’t do this. So since everyone is getting the
same benefit here, let’s let them have it. What was most important about
Everson was that it included within itself for the first time
as an active important part of the decision, the metaphor of
separation of church and state. And while this case came out
from the religious group, the next case and pretty much
every case after that went the other way. It was found, for example, that
you could not have a public school allow release time in
which religious topics might be taught. What you end up with then is what’s
called the Lemon test from 1971 in which is decided by the court
that any aid from the government to religion was to
have a secular purpose, the end has to be general
education not religion. Its effect primarily must be
secular as well. It must mostly simply add to
education, not religious education. And there could be no excessive
entanglements between the religious and non-religious
establishment. In the case of Lemon, they
decided the third problem was violated, why? Because they said reimbursing
religious schools for the teaching of secular subjects was
not possible, it would require too much
entanglement because those religious teachers could not
help but proselytize. If you allowed them to teach
math, they would be driven to
proselytize and teach about religion, two plus two equals
God, I suppose. But in any event, there would be
this drive. And the only way to stop it from
happening would be to have secular figures looking over
their shoulders all the time. So it could be done but it will
require too much entanglement of the secular with the religious. So, we now have the Lemon test. We have been living with the
Lemon test now for well over 40 years. What does it mean in practice? It is pretty much in the eye of
the beholder. Clearly, what’s happening here
and I’m in the process of concluding here. What’s happening here is that
you have, again, public education at the
center of our concerns, a new view of the public school
which sees public school teachers not as independent
figures or as representatives of a local community but rather as
arms of the government. In which you see local
communities as themselves, again, primarily as arms of the
government. So, some things were continued
to be protected but in a very different way, religious access
to public schools, to public facilities, to public
forms, tuition vouchers if the parents
are choosing among a variety of schools, religious schools can
be among them. Purely symbolic representations
provided they aren’t seen as providing an endorsement. And, being excused from certain
requirements only if it’s not a general law, the famous peyote
case in which it was found that a general against ingesting
peyote, having been violated by workers
who were members of the Native American church could not be
inoculated against by the religious beliefs of these
people. So then what do we have now? We don’t have really a coherent
view of religious freedom in the United States, instead what we
have is an attempt by the Supreme Court to protect
individuals particularly individual expression. Not in protection of groups, not
in protection of religion itself beyond certain tax breaks and
that frankly is a dying out in a number of ways as well. You even have groups like
Catholic charities being told that unless they are pervasively
religious in all aspects, they cannot gain relief from
generalized laws such as those dealing with contraception and
abortion which obviously enough leads into the discussion of our
panel which I think will be useful to talk about so let me
just leave you with this. We have progressed, if you want
to use that phrase, from a nation in which Americans
saw themselves as members of communities and individuals to a
country in which the federal government sees it as its job to
protect individuals from impositions on the part of
various communities. This takes place in the
religious as well as other spheres and it brings a very
different dynamic to constitutional cases than we’ve
ever had before. Thank you. [ Applause ]>>Thank you very much Professor Frohnen. I just want to remind you that
at least we, the people of this great state
of New York considered the declaration, foundational and we
included it as the preamble to our constitution in 1777. Not mention as you speak of free
and independent states, you omitted that the reference
to representatives of the United States presumption of a union at
the same time. All right. Today, I, we would be remiss if
in speaking about–if you could do this please, yeah. We will be remised if in
speaking about religious liberty if we did not mention two recent
cases, two landmark cases rarely
dealing with the topic just decided by the court last term. I’m going to look at the case of
Burwell versus Hobby Lobby. And what I want to do
in–briefly I have 15 minutes here is to discuss or try and
analyze the court’s ruling in this case so we can understand
it. And then I–I’m certain this
will raise a lot of questions for discussion. But let’s look how the court
rustled with some of these principles, Professor Frohnen
had just discussed, OK? And we want to–to what extent
is the court applied or misapplied its principles in
looking at this case, OK? Let’s continue, OK? We noted the–We
provided an overview with the founders on religious liberty
and we mentioned the First Amendment, the two clauses, the
free exercise and the non-establishment clause. Please continue, OK. So where’s–How do I–OK. All right. The issue in this case is
whether the contraceptive mandate of the AHA that is the
Affordable Healthcare Act violates the religious liberty
of a closely held corporation. Now I want you to pay close
attention to this term closely held because the court had
gave–has given it a very specific meaning as guaranteed
by the Religious Freedom Reformation Act 1993. In the court’s oral arguments
they refer to the Religious Freedom Reformation Act as RFRA. So I will do so as well, OK,
RFRA. Sounds like something from
Scooby-Doo. Of course, our legal system is
adversarial so it’s important to know something about the
plaintiffs and the defendants and the claims of each. The plaintiffs here, those who
are initiating the lawsuit were closely held companies at least
is regarded by the court of Hobby Lobby, an arts and crafts
companies located out of Oklahoma and the Canestoga
Company which was a cabinet-making wood company in
Pennsylvania. They claimed that the mandate
violates their liberty of conscience in compelling them
provide support for abortifacients. And by this, we mean birth
control devices that in–destroy the embryo. And therefore, they see this
according to their conscience as the destruction of human life. So, their objection is that the
state is compelling them to do something repugnant to their
conscience. The defendant is the Health and
Human Services as represented by Burwell representing the
Affordable Healthcare Act. The government is claiming it
has an interest indeed according to the dissent a compelling
interest in providing access to contraception. So these are the conflicting
claims. It’s important to recognize the
context of this case. Interestingly enough, and I
don’t–many are surprised, this case did not involve
adjudication of the Free Exercise Clause of the First
Amendment. It did involve an interpretation
of free exercise but the basis for that interpretation was not
the Free Exercise Clause of the First Amendment. And I’ll explain why. The legal basis was RFRA as I
had mentioned, the Religious Freedom
Restoration Act of 1993. I need to take a moment to
explain this. The context of this act was in
response to employment division versus Schmitt a case 1990 which
involved the question of whether or not peyote, a
hallucinogenic drug was protected under the Free
Exercise Clause for Native Americans, members of the Native
American church. The Supreme Court ruled no. In fact, Justice Scalia, writing
for the majority claimed that no exemption could be given to the
Native American church for the use of peyote in sacramental
rituals that in fact the state had a valid and legitimate
interest, a general interest in preventing
drugs and the spread of drugs. The standard here for–it’s
called the Schmitt test and Professor Frohnen mentioned in a
moment ago is it if a law passed by the government is validly
neutral and of general applicability, it does not
violate the Free Exercise Clause. What this means is if we look at
the scale of justice, it is tilted in favor of the
government, OK? The government, the court is
going to more often than side with the government if a law
does not discriminate. For example, provided the law
doesn’t discriminate or target a specific religious group, it’s
going to be upheld and sustained by the courts. That’s what we mean by a valid
neutral law of general applicability. So, the peyote case reversed the
court’s previous trend in granting exemptions, the court
in fact, the movement of the court
in–from 1965 to 1973 and its precedence were–wants to grant
exemptions. In one case, for example, to
allow the Amish in Wisconsin versus Yoder to withdraw their
children from public schools after the age of 16. They were given an exemption for
this on the basis of their religious beliefs that their
children would be corrupted by secular influences after this
age, OK. Now, in response to what
Congress viewed as a very repressive standard in Schmitt,
OK. The RFRA was passed. It was passed by a democratic
congress by overwhelming margins and signed by President Clinton
in 1993, the Religious Freedom
Restoration Act. Let’s look at this act very
quickly, OK. I want to look the particular
language. It prohibits the government from
substantially burdening a person’s exercise of religion,
notice the term appears in this statute or this law as well as
the Free Exercise Clause. Unless the government,
“demonstrates that the burden to the person is one, in
furtherance of a compelling governmental interest and two is
in the least restrictive means of furthering that compelling
interest.” And in fact, the Congress sought
to return to pre-Schmitt jurisprudence in granting
exemptions to religious groups. The statute here, the RFRA
provides and affords greater protection to religious liberty
than the First Amendment as interpreted through the lens of
Smith, that’s what is important here. The statute provides, if you
will, greater protection to the
religious dissenters. I want to look quickly at the
four elements of the RFRA standard. One, to mention of free exercise
for persons, this raises the question as
we’ll see in Burwell versus Hobby Lobby are corporations
persons? Two, what is a substantial
burden of religion? What does it mean to
substantially burden the free exercise of religion? Three, what is the compelling
government interest? By that we mean, what is the end
or the purpose of the state, what is it seeking to attain? The court is concerned with the
state’s motives and whether or not those motives are
discriminatory. Four, the least restrictive
means test. Let me give you an example,
these are from actual cases here in the United States and in
Europe. We’ll look at the culture and
halal analogy. One can say that the state has a
compelling interest for example. In providing for the humane
treatment of animals, OK? And therefore, let’s say in view
of this and the humane treatment of animals, it passes laws that
animals have to be stunned before they are killed so they
won’t feel pain, all right? Now, of course if you know
anything about culture and halal preparation of foods, that’s the
good stuff. We have quite a few places, good
halal places right around here at RIT, I’ve been there. That, you know, they cannot stun
the animals before they slaughter them, right? So one can say, although the
state may have a compelling interest in maintaining the
humane treatment of animals, its means are too broad because
they prohibit, they prohibit these religious
groups, Muslim and Jews from the ritual
slaughter of animals. And therefore, one can still
maintain the compelling interest, the humane treatment
of animals but one has to grant an exemption to cultural
butchery, slicing of the jugular in this
case. The RFRA provides a balancing
test, OK? And we can think of
jurisprudence very much as a balance, as an equipoise or
weighing of different claims. On the hand, there was the
state’s interest. And what is the state’s
compelling interest. On the other hand, there is the
claim of the dissenter of the minority in this case Hobby
Lobby who are claiming that, again, their religious liberty
is being violated by being compelled to provide birth
control of which they view terminates human life. Keep in mind that RFRA is a
stringent test. The scale in this case is not
even but it is tilted in favor of the religious claim. The burden under RFRA is on the
state. The burden is on
government to demonstrate a compelling interest and to do so
in the least restrictive means. If there are other means that
can achieve this compelling interest that are less
restrictive, OK, then in fact, those have to
be resorted to. I want to now look at Justice
Alito’s majority opinion in light of the framework that I
just discussed. Persons, if we look RFRA, we
know that person’s was an important element to the
decision. Who would think that person’s is
controversial under law? Well, it is, it is
controversial. And in this case, Justice Alito
decided that for-profit, for-profit corporations are
persons and he cited the dictionary definition of persons
which included corporations. Also, he noted that in this
case, corporations are closely held,
what does that mean? These are according to Justice
Alito, family owned and run operations
that are not publicly traded and they have a closely held,
closely shared religious mission or purpose, OK? The substantial burden part of
the task, well, there’s a–the substantial
burden, two respects. One, the crisis of conscience
violates and sincerely held belief enforcing these closely
held corporations to provide birth control which they find
objectionable. Two, if they are to fail to
provide birth control, they would be fined, this was at
least with the claim $475 million. The least restrictive manner,
it’s interesting if we look Hobby Lobby. This is part of the task that
the government failed. Why it did failed the least
restrictive requirement because an exemption had already been
given for nonprofit corporations. And in the mind of the courts,
in Scalito’s, I’m sorry, Scalito’s, Alito’s
reasoning, it is look, there’s already the
government in making an exemption to nonprofit religious
organizations, it’s already conceding that
there was a least restrictive means to going about this, to
providing an exemption. And a tacit admittance to the
corporations are persons. Finally, the compelling interest
and this is interesting. Justice Alito and his majority
opinion does not really tackle this question. He simply says, “We find it
unnecessary to adjudicate the issue.” Because he says that this issue
stands or falls in regard to the least restrictive task. So whether or not the government
has a compelling interest in ensuring equal access to birth
control for all women, for Alito is–need not be
considered because the government has already failed to
provide the least restrictive means even if we admit that this
is a compelling interest. Quotes from Alito’s majority
opinion, “The purpose of extending rights
to corporations is to protect the rights of people associated
with the corporation including shareholders, officers and
employees. Protecting the free exercise of
rights of closely held corporations thus protects the
religious liberty of the humans who own and control them.” Again, extending–free exercise
of religion to closely held for-profit corporations. Any suggestion that for-profit
corporations are incapable of exercising religion because
their purpose is simply to make money flies in the face of
modern corporate law. That’s what he’s arguing. “In any event, our decision in
these cases is concerned solely with the contraceptive mandate. Our decision should not be
understood to hold that an insurance coverage mandate must
necessarily fall but conflicts with an employee’s religious
beliefs. Other coverage requirements such
as immunizations may be supported by different interest
and may involve different arguments about the least
restrictive means of providing them.” What Justice Alito is saying
here is that this decision is narrowly tailored to apply to
closely held corporations involving the contraceptive
mandate. It’s not–It will not, he is
hoping expand to exempt people from immunizations of which some
religious groups may object to immunizations and then dissent
points, points that out. Our responsibility is to enforce
RFRA as written. And under the standard, RFRA
prescribes the contraceptive mandate is unlawful. Let’s look at–almost done here,
Ginsburg’s dissent now, provide a balanced treatment of
this. Justice Ginsburg argues that
interpretation of RFRA is too broad and was never intended. The free exercise of religion to
apply to for-profit corporations, she argues. She also distinguishes, she
said, “Granted exemptions had been
made to nonprofit corporations but this nonprofit
corporation–these nonprofit corporations are religious
groups.” And you just can distinguish
religious groups from for-profit corporations. Third, she claims that Alito’s
opinion in no way considers the effect that this has on third
parties. It mostly considers just the
claim of the plaintiff’s conscience. And that there is a–there is
profound harm done to the third parties in the case, women in
denying their access or frustrating their access to
contraception which will enable them to participate equally in
the political process and in society. Also, remember RFRA demands some
substantial burden. Justice Ginsburg claims that,
“Look, what is the substantial burden
on the part of Hobby Lobby? The fact that, that they have to
contribute towards or their insurance has to pay part of
partially for birth control. This is too indirect, too
attenuated. We would say perhaps, it’s more
direct if they were forced to use the methods themselves. But this is for their employees. You cannot refer to this as a
substantial burden therefore. And of course, she discusses a
parade of horribles that in fact the exemption in this case would
open flood gates to other exemptions. Immunizations, people will claim
exemption for immunizations on religious grounds and other
tests. Let’s look at some quotes from
Ginsburg’s dissent. She says, “In the decision of
startling breath, the court holds the commercial
enterprises including corporations. Along with partnerships and sole
proprietorship can opt out of any law saving only taxes. They judge incompatible with
their sincerely held religious beliefs.” “The free exercise of religion
is characteristic of natural persons, not artificial entities
like corporations, she argues. No tradition and no prior
decision under RFRA allows a religion-based exemption when
the accommodation will be harmful to others, the third
party argument. In conclusion, has the court
struck the proper balance? Who do you agree with? Who do you think has the best to
the argument here and see that conflicting claims? Has the court applied or
misapplied some of the principles, Bruce, Professor
Frohnen spoke about. What next? There is opinion right now
working through the Tenth or a case working through the Tenth
Circuit Court in which a group is claiming, it doesn’t to have
any coverage of birth control, wants it completely exempted. Thank you so much. [ Applause ]
At this time, I want to introduce my wonderful
colleague, Lauren Hall, an Assistant
Professor of Political Science here at RIT. She received her PhD from
Northern Illinois University in 2007. She’s written extensively on the
classical liberal tradition including articles on Burke and
Montesquieu. She also works on the track in
political science in the life sciences here RIT, writing and
teaching on topics such as the Ethical Political Implications
of Biotechnology. Her recent book “Family and the
Politics of Moderation” was just published by Baylor University
press this year. And she is bringing a world
class group of scholars to RIT in May 2015 for a symposium on
spontaneous order in the social and political sciences. She is going to talk about the
case in our backyard, Greece versus Galloway. Please welcome, our final
speaker, Professor Hall. [ Applause ]
>>Well, thank you Professor Fornieri for
inviting me. And for leaving me with a nice
fresh audience ready to hang on every word. So I’m going to make this
relatively quick because I do want to make sure that we could
get to some question and discussion. So the case that we’re looking
at right now is Greece versus Galloway. It deals with the separation of
church and state particularly at the local level. So this was a 2014 case, again,
right in our backyard. Very quickly, the two
plaintiffs were Susan Galloway and Linda Stephens. Galloway was Jew or is Jewish. Linda Stephens is atheist. Both of them are Greece Town
residents. And their argument was that
after a long period of time of going to Greece Town meetings,
they notice that all of these town meetings started with
Christian prayers. And so, their concern was that,
that their–that this violated the establishment clause. And we’ll look at the specifics
of that case. A little bit of background prior
to 1999 meetings opened with a moment of silence, when a new
Greece Town supervisor was elected. He brought with him a tradition
from the county legislature where he had served of opening
town meetings with a prayer. Between 1999 and 2007, every
meeting opened with a Christian invocation. When the plaintiffs began
complaining, we started to see a shift. So they allowed Wiccan and a
Baha’i person and a Jewish layman to come in and give those
invocations. As background of course though,
Greece is something like 95 percent Christian. There’s about a three percent
Jewish population and another very small other population of
religious minorities. So the big issue here and I’ve
tried to sort of color code some of the major issues is whether
the Court of Appeals aired in holding that a legislative
prayer practice violates the Establishment Clause first, not
withstanding the absence of discrimination in the selection
of prayer givers or forbidding exploitation of the prayer
opportunity. So the two major things that
previous courts have looked at in the establishment clause, is
whether there was discrimination, i.e., is the
town discriminating against a particular religion. And are you using the prayer
opportunity as an exploitative act or, i.e., are you using this
to proselytize. And so, the question here is, is
prayer alone enough of an establishment or you need
discrimination and proselytization at the same
time. So Galloway’s argument was
twofold. The first was that the procedure
for choosing speakers unfairly preferred Christian speakers
over non-Christians. And then, the second concern was
that prayers themselves were unconstitutionally sectarian. So to tackle the first thing,
the way that Greece chose these speakers was they had a list of
religions establishments in the town of Greece that was put
together by the chamber of commerce. And they would move through that
list every month and chose speakers from that list. Eventually, they had a list of
people who were willing to do this. And so, they would just choose
people off of that list. It does happen that the majority
of religious establishments in the town of Greece were
Christian. There is one Buddhist temple
that was inadvertently left off of that list. But all of the synagogues in the
area are actually right outside the Greece Town line. And so, they didn’t show up on
the list that the chamber of commerce put together. Again, there’s no evidence that
there was intent to discriminate. It simply happened that the list
that was put together was not a complete list of religious
establishments in the area. The second concern was that the
prayers themselves were unconstitutionally sectarian. A lot of the prayers mentioned
specifically Jesus Christ as a savior. So the idea is that this–we’re
not talking about a sort of neutral or generalized idea of
God. We’re talking about a very
specific kind of Christian sectarian understanding. So the major precedent in this
case is Marsh versus Chambers in 1983. This case dealt with the
Nebraska State Legislature and their practice of opening
legislative sessions with a prayer. In holding in that case was to
invoke divine guidance on a public body entrusted with
making the laws, it’s not in these circumstances
a violation of establishment clause. It is simply a tolerable
acknowledgment of the beliefs widely held among the people of
this country. And Marsh used this and as the
primary historical example, the example of Professor Frohnen
brought up which was the legislative prayer was very
common at the founding. And in fact, this came up in the
Marsh case and then comes up again in Justice Kennedy’s
decision just day–within days of passing the establishment
clause or okaying the language of the First Amendment. Congress also appointed
chaplains for both the Senate and the House of
Representatives. So the argument in Marsh is that
you can’t have a historical practice that was passed at the
exact same time as the First Amendment cannot be
unconstitutional, all right. So this is the concern that
primarily comes up. So Marsh versus Chambers is the
really important precedent but there are couple other relevant
cases. Lee versus Weisman in 1992
looked at school prayer and found that invocations are not
permitted. The major controlling issue in
this particular case is that schools are a different kind of
environment, that there’s a kind of coercive
element to public prayer in schools, and especially at
public events like a graduation where you either have to miss
the graduation in order to not be a part of the prayer. And so that was too coercive the
court believed. The second case which again Professor
Frohnen brought up was the Lemon case. And this is Lemon versus
Kurtzman in 1971. The part of the Lemon test that
that is more relevant for this particular case is emphasizing
limiting government entanglement with religion. And this comes up in, again, in
Kennedy’s decision. So what makes these cases
different is that both of them have to do with school children,
and both of them have to deal with the way in which local
governments were entangling themselves on to some degree
with religious organizations. So there’s two major limits
established by precedent and this is what the court was
trying to look at. Governments cannot use the
prayers to proselytize. So, that’s the one key concern. And they cannot discriminate
against or advance a particular faith. So, what the court was looking
at in this particular case was does opening a town board
meeting either proselytize or discriminate against people of
different faiths. Obviously, Galloway believed
that it did. And we’ll see what the court’s
opinion was. A couple of notable discussions
came up during arguments and these are going to come up in
the opinions as well. The first has to deal with
whether religious customs that are rooted in history are less
problematic than new innovations. And so, the question is, how do
you respect the religious traditions and heritage of the
people while at the same time protecting individual rights
within the context of local government. Another important concern was
why the religious indication single out citizens of other
religions. So the argument that Galloway
made was that if you didn’t want to participate in this public
prayer, you actually had to remove
yourself from the room which was going to single you out as a
citizen who does not believe the same things as other citizens. So the concern is that this puts
too much pressure on citizens to protect their own religious
beliefs. Another concern that comes up is
whether there are any prayers that are going to be acceptable
to people of every possible religious belief. So, Galloway made the argument
that we needed more neutral prayers that talked about a sort
of generalized God as opposed to sectarian prayers that talk
specifically about Jesus Christ. And one of the concerns that
comes up again in the opinion is whether it’s possible to have a
truly neutral prayer of any kind or a prayer that every possible
religious organization would agree with. And then the final concern, and
this is crucial for Kagan’s dissent is whether prayer at
legislative meetings may be different from prayer at town
meetings, whether there’s something
qualitatively different about town meetings where citizens
come to actively petition the government. As opposed to something like in
the Nebraska State Legislature where you have religious people
speaking simply to legislators and citizens are not present or
not involved in a prayer in that way. So the decision which was
written by Justice Kennedy was that the town of Greece does not
violate the First Amendment by opening its meetings with prayer
that comports with our tradition and does not coerce
participation by nonadherence. So he follows very heavily from
the Marsh precedents here. Now the important thing to keep
in mind about this is that there wasn’t a solid majority opinion. You have Kennedy’s opinion. He’s joined for parts of it by
other conservative justices but other conservative justices also
wrote concurring opinions. So, it’s not a very–a super
strong opinion in that sense. He does provide guidance for
future cases, so he says, “Absent a pattern of
prayers, and this is the crucial part,
“That over time denigrate or proselytize or betray an
impermissible government purpose, a challenge based
solely on the content of a particular prayer will not
likely establish a constitutional violation.” So, Kennedy’s argument is that
there’s no proof of discrimination. There’s no evidence that Greece
purposely sought out only Christian thinkers. And in fact when complaints were
lodged, they welcomed other religious
denominations to come in and give those invocations. So there’s no evidence of
discrimination on the one hand. And then there’s no evidence
that there was proselytizing or any kind of undue coercion. So his argument is that
ultimately this is the same kind of situation that we find in
Marsh. A couple of interesting
concurring opinions, Justice Thomas made the case
that the case should be dismissed because the
establishment clause does not apply to the states. And that the establishment
clause was improperly incorporated by the cases that
Professor Frohnen brought up. Thomas is always good for a
losing battle, right? He’s–He always sort–throws in
that, it’s–yeah, it’s a very radical
argument. So, his argument is this–the
states were always allowed to establish religions, that was
very clear at the founding. And so, this isn’t–this
shouldn’t be an issue at all. Scalia doesn’t go that far but
he joins Thomas in the second part of the decision. And he says, “Look, even Marsh
goes too far, we’re not–we shouldn’t be
concerned about subtle pressure here.” What we could
just–what we should be concerned about is actual legal
coercion where people are forced to pay taxes to pay churches,
where people are forced to give oaths in front of public
meetings. Unless there’s legal coercion
involved, subtle pressure, subtle coercion
of various kinds is not relevant, right? So, that the standard in Marsh
is actually too broad according to Thomas and Scalia. And then finally, Alito and
Scalia respond to a couple important things in Kagan’s
dissent, the first being that intent
matters which we’ll look at in a second. And then their concern that
Kagan’s dissent is overly broad. So we’re going to switch gears
and look at the dissents really quickly and then hopefully get
some good, good discussion going. Breyer’s dissent is fairly
straightforward. He just–His major concern is
that the town’s procedures were not broad enough. So the town should have sought
out people of other religions and explicitly directed folks to
be nonsectarian. The nonsectarian direction, by
the way, is one of the major concerns of
both Alito and Kennedy in that by having local government
officials direct the invocation speakers that that would
actually create an entanglement with religion because you would
be essentially censoring the free speech rights of the
religious speakers. So there’s a conflict there as I
think Professor Fornieri pointed out as well. Kagan’s–or Kagan’s dissent I
think is it’s extremely passionate and it makes a couple
really important arguments. The first and this is the most
important is that town government is different from
legislative or state legislatures. It’s what she calls a hybrid. And it’s a hybrid because in a
town board meeting, you’re not only going to watch
legislatures make law but you’re also going to actively petition
the government, you’re asking government
officials for things. Whether those things are permits
or variances or to get out of tickets or to complain about
the, you know, the state of the
world, you know, I’m sure you guys have
been to local government meetings. So, it’s a hybrid which means
that citizens are directly petitioning their government. And so it’s not the same thing
as simply passively watching a legislative session, you’re
actively involved. And therefore, citizens get
sucked into public prayer in this context in a way that they
don’t in normal state legislative sessions. So her argument is that Marsh is
fine, legislatives alone can have
public prayer. What changes in this position is
that you have petitioners, directly petitioning the
government and citizens are directly involved. So the prayers are directed at
local residence and the prayers are highly sectarian. But she argues again that Marsh
itself would still hold, she has no concerns with Marsh
itself because the tradition of legislative prayers are very old
one, it goes all the way back to the
founding. So her concern again is this
sort of hybrid governmental system. So here’s a quick quote from
Kagan’s dissent. Here, when a citizen stands
before her government and she’s referring to the history in
United States whether they perform a service or request a
benefit, her religious beliefs do not
enter into the picture. So we need to be absolutely
neutral toward citizens when they come before us in their
capacity as citizens. So the results, very quickly,
Greece asked an atheist or an atheist asked Greece and Greece
said yes, to give the invocation which she
did shortly after. And then shortly after, they’ve
changed their bylaws to require all invocations to be affiliated
with a religious assembly in the town of Greece or outside of
Greece that people attend. The reason for this or the
rationale was–for this was that they were flooded with requests
you give the invocation by religious people of all
varieties. And so they felt they need to
limit it to at least religious assemblies that people in Greece
would go to. The kicker, of course, is that
that seems to rule out atheists or humanist speakers and seems
to restrict the invocations to solely religious believers and
so that’s a concern of many people. Some important questions we can
just think about and maybe hopefully discuss on the panel. One of them is how far religious
content has to go before it establishes a religion. So it’s simply giving a prayer
at a public meeting, any kind of establishment, does
there have to be this pattern that Kennedy talks about? So how exactly are we
interpreting that? If the majority of community
members are Christian as is the case in Greece, is public prayer
an establishment of religion or merely a recognition that there
are shared moral and religious values at play. So this is a really important
kind of concern especially for local governments which again as
Professor Forhnen pointed out or supposed to be sort of organic
and they’re supposed to reflect the values of the people who
lived there. If 97 percent of the people who
lived there are Christian, do you have to have 90–97
percent of the prayers be Christian, or do you have to
alternate sort of every week, you have a Muslim and a
Buddhist, you know, how is that going to
work? And then finally the question is
what role should religion play in public life if any. We are not a secular state in a
way that France and Turkey are. And so, one of the things that
we have always–and this goes back to Professor Fornieri’s
argument that there’s a kind of tension between the
establishment clause and the Free Exercise Clause. So we have always allowed people
to bring religious symbolism and their faith in general into the
public sphere. The question is how to balance
that with the very delicate nature of local government
activities. So I’ll leave it there and
hopefully we can have some good thoughts. [ Applause ]>>Well, I thank you
for being with us. Do you have any–I’m sure we
have some questions. Please. Bruce, can you join us? Is this the–the speaker is
here, this is nice. I need one of this. Can I borrow this?>>Yeah.>>Thank you everyone for
coming. You know, it was, you know, it’s
been a long– [Inaudible Remark ]
>>To go back to the debate about whether the contraception is a
burden upon the religion of the employers.>>Yes.>>And you said that the judges
had to–the judges, the Supreme Court decided that
the federal government had already broken the third rule of
the Lemon, of the Lemon–>>The RFRA,
RFRA. Yeah.>>By already–they had, they
had already implemented–>>The least restrictive means.>>The least–>>Yes.>>–least restrictive means–
>>Very good.>>–have already been
implemented as an exemption for non-profit organizations?>>Yes.>>So, but I thought that
the–that the third rule was you would have–you have the least
restrictive means that still accomplished the aims of the
federal government. And that aims of the federal
government was to support the providing of healthcare for
citizens regardless of their religion. So when–>>They’re still
providing healthcare.>>If there’s an exemption for
for-profit organizations, would that mean that they’re not
providing healthcare?>>They’re still–>>Sort of
I’m not following it completely.>>No, I think the question is
would it not in fact undermine the purpose of the legislation,
if they were to extend the exemption to for-profit
corporations. And I think the answer is
this–the argument is that this is only nonprofit corporations,
there’s only a few of them. And there’s even fewer closely
held corporations that are going to take advantage of this. So the number involved of
organizations that would stop providing coverage specifically
for abortifacients would be so small that it would not in fact
harm the generalized purpose of the legislation which is to make
these problems of birth control generally available. [ Inaudible Remark ]
>>Thanks, sorry about that. Bruce, you know, the–during the
oral argument, the lawyers on the side of–the
lawyer on the side of Burwell said that Walmart would
constitute a closely held corporation by this definition. Do you agree with that?>>Of course, Bob.>>Why? Well, if you look at the board
members, they’re all from the same
family, it’s a religious mission.>>OK, is it closely held?>>That’s the argument–
[ Multiple Speakers ]>>I thought it was
publicly traded.>>It is publicly traded.>>It is not a closely held
corporation. This is an extremely narrow
decision, extremely narrow. It only applies to closely held
for-profit corporations. And it only protects
the–what in a sense, in essence really are free
expressions rights. You’ve shown that you have this
specific value and you are unanimous enough and you’ve got
it, this value clearly enough stated
that it could be said to be essential to you.>>By the way, I think it’s
worth mentioning that Kennedy and his concurring opinion here
kind of decides what the majority emphasizes the
expressive element–>>Yeah.>>–of this.>>That’s what–>>That’s why
he goes along and that’s–yeah, there. I’m sure we had more questions. Ed [assumed spelling].>>[inaudible] from that
question. It seems to me I think it was
mentioned briefly that [inaudible] at the owners of
this corporations, what about the employees
consider the fact, those are the important here but
it just varies on the employers. I mean well, with an atheist,
whatever reason, doesn’t think there’s a problem
with contraception. And therefore even if it is $5,
you are compelling her to make out an arrangement because of
your religious beliefs [inaudible] through a
corporation I think. Did that come up? Is that something as–
>>They did, the government made that claim. Yeah.>>–that somebody who is
[inaudible]. But he’s imposing his own views
on this employee.>>Yeah. You know, I certainly think
that’s a, you know, that’s a concern in
under our system, right? I mean the healthcare–our
healthcare is for the most part covered by businesses, right? Employers. So the court I think tries to
answer by narrowing it. Again, that’s it’s only going to
apply to closely how corporations in this case. And I think they, they tilt the
balance, they tilt the balance in favor
of the religious dissenter with the thought that there’s still
access to birth control. They are not being in denied
birth control–go ahead.>>No, I’m not comfortable with
the way that you are phrasing that. And maybe we have a difference
and maybe not–>>Yeah.>>–sort of to be interested in
that. It seems to me that the basis
that this has to be that there’s something unusual going on and
that this is mandate. The government is telling
employers what they have to provide for there employees. Traditionally in the United
States, employers sometimes do and
sometimes do not and even under Obamacare. And many employers do not
provide any healthcare. It is not a right that you have
yet, OK. So and under that, employers
often provide a different set of benefits under the healthcare
plan. What we have here is the
question of whether it is OK for the federal government to
specifically require a closely held corporation to provide a
benefit that violates their conscience. So, does that mean then that the
other choice is to violate the conscience of the employees? No, what’s being denied to them
is a monetary benefit. And those are, you know, apples
and oranges, they’re very different things.>>You’ll see there’s an
imposition on the part of the corporation to towards
employees.>>No, money. And in fact, if you look at the
way that the argument is made, it’s will this make that
benefit, the abortifacients less
available. The argument isn’t, am I being
denied it. It’s, is it as a policy then
less available presumably because more expensive. It’s done in monetary terms. That’s the argument of both
sides essentially.>>What if, what if we take the,
the analogy in terms of immunizations? And you have a religious group
that claims that they’re not going to pay for immunization
for their employees, can that be–>>No, the
argument and I think Alito was correct here is that this
would not extend the immunizations not because
failure to provide that is an imposition on the employee. But because the governmental
goal there which is to prevent, you know, outbreaks of the
plague would simply not to be served by these kinds of
exemptions. It would be so undermined
because you’d have people catching these various diseases
that it would not be reasonable to expect that you would allow
even closely held corporations were this violates their beliefs
to opt out of it. They’re just not using this
calculus [inaudible]. It got mentioned by one of the
judges.>>Someone else. Steve [assumed spelling], yeah.>>Could you not extended the
argument with providing plague more or less tells us the side
of the government has some interest in– [Inaudible Remark ] >>Either of you want to address–
>>Well, I think the difference would be
that the purpose of the–the purpose of the ACA is not to
prevent unwanted pregnancies. So there’s a distinction I think
and far as–and so far as the purposes of the laws are
different in that particular way. That’s how I would interpret it.>>Quick follow up. Yup?>>The purpose of the ACA is to
support the general welfare of the society in terms of its
healthcare. That’s the aspect [inaudible]
same way– >>No court is going to allow you to read any legislation that
broadly. It is not, because that is
making it whatever we want to make of it. It’s not about illegal argument.>>Yup.>>Andy [assumed spelling] you
had a question?>>You know, it’s kind of the
thing with like Bruce mentioned earlier, maybe [inaudible]. But what is to stop future
companies being tight, closely held hopping up around
United States by various with religious groups [inaudible]
talking about [inaudible] psychologist not wanting to
cover psychological here, Jehovah Witnesses not wanting to
have blood transfusions. So, is there [inaudible].>>Again this is extremely
narrow. There aren’t very many closely
held corporations. And it would depend on what it
is that they’re refusing to support of attempting to
support. It was Shariah. I’m not sure where that goes
except I think it shows how far you have to stretch in order to
make this kind of slippery slope argument because it’s not like
an employer has the right to cut up the hands of any of its
employees.>>Right.>>But this is–yeah. This is–>>And I don’t know
what–>>–this is Ginsburg’s slippery slope argument at the–
>>Look it doesn’t–it doesn’t really work though for.>>What about blood
transfusion–>>Specifically–that’s when the
leaders specifically address.>>But you can test it later–
[ Inaudible Remark ]>>I’m sorry?>>You know, sue yourself, the
Supreme Court and argue that it was narrowed in this respect to
contraception. But, what about other aspects
that we can now narrow the–this?>>The problem with that
argument is that you can’t come up with believable examples. Because all of the examples
might qualify there are ones that have a broad health impact. And therefore, there is a
compelling state interest. The other examples that you
might think about or are going to be much more limited in their
impact.>>We have question from up
here? Please.>>I had a question about
Greece.>>Please.>>I had a question about the
percentages like the 97 percent Christian. How did they define Christian in
that sense, was like [inaudible] church or
people would just say, “Hey, I’m a Christian.”>>Actually Alito addresses that
in his, in his concurrencies. That’s very hard to get adequate
data because the town of Greece doesn’t collect–I mean almost
no town collects data on the religious makeup of its
population. But from the little data that we
have at something like, I mean it certainly in terms of
the number of the proportionate religious assemblies that are
Christian, it’s 97 percent or something,
religious assemblies in Greece are Christian. And then, you know, I’m not sure
exactly where the data comes from whether it’s a census data
or what. But, you know, I think it’s
people who subscribe generally to the Christian faith, who
believe in some kind of Christian God. So, it’s not people who are
going to church every Sunday or anything like that.>>We had–yeah, yeah please.>>I was wondering if in the
Hobby lobby case. If it does have a possible
precedent or have [inaudible]. Because I know that unless I’m
remembering correctly that in the– ^M01:38:42 [ Inaudible
Remark ] ^M01:38:45 But that the third party being the children
was never really considered in the ruling. They were ignored as far as like
with the mother.>>No. That’s not true. You’re talking about Wisconsin
against Yoder.>>Yoder.>>Yoder.>>Yoder.>>Yeah.>>The majority, that Justice,
the author of Griswold, Douglas claimed that the
decisions, the views of the children should
be taken it to consideration. And he had mention that in the
case, so it wasn’t–>>No, it’s more
complicated than that. He will say that you needed to
treat children as if they adults and talk about them being
exposed to a wide variety of viewpoints that the Old Order
Amish are in fact too insular and therefore, the children are
being brought up in stunted atmosphere.>>Well Douglas will say no,
it’s a–it’s a question of individual autonomy for the
kids.>>Right among youths, among
those who–>>Yeah.>>–who are highly young. The majority decision did
effect–did in fact address the effects on the children in the
sense that it said, will these children be given the
skills necessary to be productive members of society. Now, it was looked that from the
view point of society, sure.>>Right.>>But it clearly was intended
to talk about the role of parents and the duty to create
employable adults.>>It did talk about the effects
on the kids. But I think that it was a
question of the self-determination of the kids
in making the–>>You’re dealing with minors there, so
that’s always dealt with differently.>>Question here. Is it true, my understanding
that the details vary in the Affordable Care Act. The endowments, for example, the
requirements for the abortifacient drugs. It was really not–
[ Inaudible Remark ] And if that’s true, is it
possible that the next administration or some further
administration that those details will be changed and we
can be back again with a whole set of other scenarios and
details that are totally different than what we had now
which makes the other question is how was the government doing
about in this in the first place– [ Noise ]
>>Who is that guy? [ Laughter ]
[ Inaudible Remark ]>>Welcome to
administrative law.>>Yeah. It was put in subsequently.>>It is–>>–subsequently. It was included. It was included later, yes.>>Yeah, which means–>>But
there was also–there was–>>To be changed then, right?>>It was highly recommended–to
protect the health of women and to allow their equal access and
in competition in society. Yes?>>A question about the Greece
case. It was talking about the
sectarian nature of the prayers and how it would be a better
option to have a prayer that appeals the more general idea of
God. How then do you reconcile the
problem of the people who have no belief in God? How can you–How the sectarian
prayer that appeals to the idea of atheism or agnosticism>>The
short answer, of course, is that they were not
primarily concerned with atheist. You know, the reason for these
invocations is to sort of remind people of a higher power to
unify people around, you know, sort of religious
beliefs and the understanding, of course, is that there’s going
to be, you know, a sort of minority of
atheist and that this is not necessarily–even the
respondents, I’m sorry, even the plaintiffs. One of them was an atheist said,
“You know, look just talk about a general
God and it will be OK.” You know that they weren’t
talking about secular because then you’re talking just a
moment of silence or something like that. So even the atheist said, “Look,
just talk about a generalized God and we’ll be OK.” So the concern was that there
was a lot of references to Jesus Christ specifically. But you’re right and this is
what has come up in recent days with–with the new way that
Greece has now chosen the invocation speakers that that
seems to rule out atheist and humanists all together. [ Multiple Speakers ]
>>Yeah. I want to say something real
quick [inaudible]. The courts establishment
jurisprudence has been this striving for neutrality that the
government cannot prefer religion over non-religion. However, you know, whether you
think that’s guide, misguided or not. But was that is that principle
violated here? Were they, you know, is this
government neutrality or is this–can one see this is an
endorsement of religion, an accommodation of religion?>>First of all, that’s not a
generalized rule. It’s something which is a fairly
recent origin and applies in the public school of context but has
never–>>Right.>>–been applied in the realm
of what’s considered to be, you know, ceremonial deism.>>In Marsh versus Chambers and
those–>>Well yeah, series of cases actually. Yeah.>>But in the school of setting,
certainly.>>So the neutrality position
which is never had a sustained dominant majority for it, it
wins now and again, OK, doesn’t apply in this kind
of case at all.>>Yeah.>>It never has been seen
[inaudible].>>You had–You’ve had your hand
up a long time. Go ahead please and then I’m
just going to take maybe one more question. And we’ll have to conclude. I appreciate everybody being
troopers here.>>So going back to the Hobby
Lobby case, so I understand that the
exemption is so narrow that it would not undermine all of the
federal, the interest, the federal
government’s interest to provide healthcare for women. And I also take in point that
maybe the federal government should be involved in healthcare
at this level at in any way. But, and this might be comparing
apples to oranges. But how do you–how would you
because you mentioned that the federal government is not be
able to mandate certain corporation to do some things. So then how do you view things
in the light of affirmative action with the federal
government mandates a certain amount minority employees?>>Bruce is pretty consistent on
these issues. [ Laughter ]
[ Inaudible Remark ]>>Yeah. Yeah. The certain amount of
percentages, they’re not supposed to mandate. Percentages, they’re supposed to
mandate procedures and attempts. Of course, that ends up being
percentages because the mandate isn’t really achievable other
than with solid–>>No numbers–>>–percentages
required. Yeah.>>–no quantitative
terminations.>>One more question from a
student please. Sorry, Ed. Yeah. Boy? I don’t want to cut, maybe we’ll
go for three more questions, all right? Quick, because I don’t want to
cut you guys off. Please, what’s was your name?>>Bryan [assumed spelling].>>Bryan, please. And then this is what we’re
going to do quickly. You, there on the left and then
right up there because we had three and then we’ll cut it off.>>First of all, I think it was
during your presentation, you mentioned Judge Thompson’s
[assumed spelling] perspective– [ Inaudible Remark ]
>>I think the argument and Bruce might be able
to weigh in here. Again, I mean, I think the
argument that Thomas would make, Thomas is bringing up the rear
in a lot of ways. But– [ Inaudible
Remark ]>>–that local governments are really,
they have a lot of freedom to establish various kinds of
religions. And so they can, you know, they
can do totally sectarian prayer of, you know, a very, very
specific sort without any kind of constitutional problem at
all. Because really, the
establishment clause only applies to the federal
government. So this would open, you know, if
Thomas won, which he never will, it would
open the flood gates for local and the state governments to
make religious dictates of various sorts.>>You’d had to overturn to
Everson?>>Yeah. Yeah. In addition to the fact that
this is just tossing a bomb to see what happens. I think that’s why. But you might want to keep in
mind what would actually happen in a lawsuit here, which is not
that it would stop and everybody would say, “Oh, it’s local, you
can’t do anything about it.” It’s just that the lawsuit would
go to the New York Supreme Court. And chances are in New York,
you’d had a problem, because New York is almost
certainly going to be the kind of a state that would have a
problem with these sorts of activities. You’d simply have 50 different
sets of rules regarding what is permissive–permissible and what
isn’t.>>I think you’ve been hard
enough on New York State? [ Inaudible Remark ]
[ Multiple Speakers ] >>Please, yeah. [ Inaudible Remark ]
>>It would be hard because you’d have to show that
it was a sincere belief.>>That’s right.>>And there would be–if it’s
new, there would be a real view that
maybe this is done for a political or even economic
reasons. They’re allowed to, in a sense,
interrogate you about that. So I’m not saying that if it’s
new, it wouldn’t happen but it makes
it much more difficult.>>And one more. Thank you. Yep.>>Yes, there was a–there’s a
situation, I think it was in Oklahoma
awhile ago where there was a town hall and they posted the
Ten Commandments. [ Inaudible Remark ]
>>Correct.>>Is there any legal or
constitutional impetus to deny that group the statue of satan?
[ Inaudible Remark ]>>Yeah. I like to call up the Santa
Monica answer because Santa Monica for a number of years now
has had an area for everybody and anybody to post something
around Christmas time. And they just do it by lottery. So if you want to take your kids
to enjoy the Christmas season, you can go to Santa Monica area
for this and they can see a crash. They could see a nativity scene. They can see a Buddhist scene. They can see the
devil. They can see something like
humanists. So the kids can really enjoy the
full holidays here as it was intended to be seen.>>Inclusive.>>Well, this is–I like to call
them the interior decorating cases. Where the court decides, you
know, if–all right, we’ve got a cross
here, is that going to be OK? Well, it depends on how close
the cross is to a menorah or even better, say
it in the reindeer. OK, because it has to be sort of
sterilized made OK by these other symbols. So in point of fact, those
Satanists are, you know, sanitizing those Ten
Commandments. So they’re certainly not going
to be anything in the Supreme Court that’s going to saying no
to that. The only question is whether
there’s anything–the locality can do about that. And the answer is it’s extremely
difficult under the current doctrine because what current
doctrine is about is protecting the rights of individuals to
express themselves including in this area of religion, all
right. Religious exercise and
establishment cases are now what used to be because they’ve sort
of been sucked into the idea of another individual expressive
right like the other ones. And you know, most Americans, I
think they’re perfectly happy with this. And this is something
conservatisms as well as liberals on the court use in
making these decisions. It ignores the rights of groups
but that’s how it is. So it’s just a matter of can you
express yourself. If it’s a public forum, nothing
to be done about it.>>Thank you so much. I’d like to meet my colleagues
down here. Those who have attended, please
come by. And thank you everyone, you
folks have been troopers, we’ve really enjoyed it. Thank you, Bob Paquette. [ Applause ]
And we’ll see you. Amen.

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