August 21, 2019
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Steven Green – The Tension Between Marriage Equality and Religious Liberty


Bugyis: On behalf of Sarah Hampson and Tom Cobb, my co-organizers for this speaker series I want to welcome you to University Washington Tacoma. And this event which is co-sponsored by Politics, Philosophy, and Public Affairs. Which is one of the divisions within the School of Interdisciplinary Arts and Sciences As well as the University of Washington School of Law and the City Club of Tacoma. We’re just very delighted to have all of you here as well as our speaker, Steven Green. We wanted to say maybe a word about the speaker series in general, this is the first of three events, we will be having. And when Sarah and I sort of got together to start talking about this and then Tom came into the conversation. We were thinking about how to unite a few of the very disciplines that are represented in our very interdisciplinary school. And of course, one of the big issues especially moving into an election year as we are. Is granularly the place of religion and public life, the interaction between religion and politics. And with the recent supreme court cases, which will be talking about tonight, more specifically the interaction between religion and law. I think helpfully, in his most recent book, Steven Green talks about the role of myths in political life, as uniting of people. Giving the people a certain identity, and motivating them to do something, which is certainly something that both religion and law seek to do. So it seems fitting that they would kind of come together and at times negotiate over some of the same ground. And so, thinking about how we ought to understand those negotiations, is one of the things we wanted to do, through this speaker series. So, as I mentioned this is the first of three. Late February, beginning of March, we would be having Ludger Viedhues-Bailey, who is a professor at LeMoyne College in Syracuse, New York. Who would be talking, also about same-sex marriage but from the more sort of philosophical of religious study side of the discussion. And then, later in, probably May or so. We’re hoping to have somebody from the Becca Fund for Religious Freedom, who is advocating on behalf of American Muslims. And the sort of possible complications of- surrounding religious liberty for that community. So, lot of fun things coming up. Stay tune and we will certainly have the word out to you soon. So now I’ll hand it over to Sarah, who is going to introduce her speaker. Hampson: Thanks Eric. Thank you all for coming. I hope you find tonight’s speaker enjoyable as I know I will. So, Steven K. Green is the Fred H. Paulus Professor of Law and affiliated professor of History at Williamette University. He also there, directs the Interdisciplinary Center for Religion, Law, and Democracy. And he teaches numerous courses in legal history, American law and politics. Professor Green is also the prolific scholar, he’s the author of five books. The most recent of which is our this year with Oxford University Press, called “Inventing a Christian America: The Myth of the Religious Founding.” Professor Green has also served in numerous legal advisory capacities. And for example, has helped draft federal and state legislation, that affect religious – liberty interest. Including the Religious Freedom Restoration Act, which many of you may be familiar with. So tonight, Professor Green’s talk is entitled “The Tension Between Marriage Equality and Religious Liberty” Please join me and warmly welcoming him to the University of Washington Tacoma. [Applause] Green: Thank you. Thank you Sarah, thank you Eric and Tom. Great pleasure to be here. I haven’t been to downtown Tacoma for quite a few years. And I’m really impressed with your campus and how, how vibrant it seems. So it’s a real pleasure to be here. It’s an honor to be here to the- giving one of these lectures about the intersection of religion, law, politics, history. Those things you’re not supposed to talk about in polite company or at the dinner table, right? So, hopefully um, we can talk about them some. Let me just start out by giving the disclaimer of that of course, everything that I say here, is- represents my own personal views. Not those of Williamette University. And then also say that, I take a position on these issues and so I don’t mean to offend anybody that has a different opinion. And I hope you speak out, but yes, I’m just thinking on the way over here about that, and I’m serving on our faculty recruitment committee. And the junior member of that committee that’s brand new was criticizing one of our applicants because he said, “Well this article is a little too polemical. He’s taking too much of a side to this issue” And I turned to him and said, “Listen if you do anything in Church and State, you take a side on this. This is, you have to take one side or the other on these issues most of the time” Anyway, what I wanted to talk about, is this tension that is created to a certain extent by Supreme Court decisions. And you have to apologize in advance that I’m a lawyer, law professor as well as a historian. And I am going to talking some at least initially about two important Supreme Court cases. It’s important to give some legal foundation to these before we get more into kind of to more of subdue issue that’s in hand here. I’ve been working in Church and State as a student, a scholar, a litigator, professor for almost thirty years now. And many of the bread and butter issues that everyone is familiar about with Church and State, uh school prayer, teaching of evolution in public schools. Public funding of religious institutions like parochial schools or ten-commandments monuments on. on court house lawns. Those still exist, but to a certain extent when it comes to the law. There’s a fair degree of consensus on what is permissible and what is law. Those were the cutting edge issues when I first got into Church and State. The cutting edge issue today, is this topic. This topic about how far do our notion of religious freedom, religious liberty go. These are they important um, public legislation and regulation in the workplace and other places with public accommodations and where we draw the lines. And I’ll be up front at the beginning. I don’t necessarily know exactly where to draw the lines and the law we want there to be fine lines many times clear lines. And this is still rather new area and so, there’s going to be a hazy area that exist on how far these lines, or where these lines should actually be. So this is going to be a moving target. But let me just talk about these cases for a little bit. So like I said, this talk is about the tension between religious liberty in marriage equality. The subtopic might be why Kim Davis is wrong. Kim Davis being the Kentucky county clerk, who has refused to issue marriage licenses to this- to gay and lesbian couples. And for to say she’s wrong, but sure you’re going to understand what I’m saying. I’m not saying she’s wrong in her own, you know, personal beliefs, her own personal religious beliefs. I’m saying she’s wrong in her claim that she somehow has a protective religious liberty right to not fulfill her job obligations. We’ll get to that in just a minute. So let me talk about these two cases because what has happened. Many times my students in Constitutional Law sometimes get confused, why does the Supreme Court does what it does. And they knows as well as anybody else to a certain extent, and they come to realize this, the love that they’re in law school and are in practice. That the supreme court is made up of nine individuals and these individuals have their own personal philosophies of legal philosophies. And sometimes come together on particular issues, sometimes they don’t. We speak about the court though, as a single entity. The court has rules, the court has made this pronouncement. And so sometimes a court makes a pronouncement over here and a pronouncement over here and they sound completely inconsistent. Actually, the best example is a case I did a friend in court brief back in about ten years ago. The court took two cases doing with questions about the Ten Commandments monuments in public buildings and courthouses. You know, the one that was in state capital of Texas onto their lawn. And the Supreme Court in those two cases, went 5-4 striking down the Ten Commandments monuments in these Kentucky courthouses. When 5-4 opposing the Ten Commandments monument in Texas state capitol grounds, one justice made the difference. So many times that what- is what happens, and so. What I’m forced to do as a constitutional law professor is trying to reconcile these cases, and it’s hard to reconcile. What we have are two cases that are in a collision course from the United States Supreme Court. The most recent is the marriage equality case, coming down this last year. In the marriage equality case, this dealt with the challenge of the state DOMA, Defensive of Marriage Acts. That many states had enacted to try to ensure that states would not issue marriage licenses to gays and lesbians. What happened after a couple years ago when the federal DOMA were struck down by the United States Supreme Court. That gave the green light to many lower federal courts, more federal judges to say, “this is way the Supreme Court is going, they’re going to actually say there is constitutionally protective right to marriage equality.” So they started ruling in that way. But one of the federal circus refused to do that. So the case went to the United States Supreme Court. And in “Fight for Decision” written by Justice Kennedy, who’s kind of that moderate, conservative, but middle position person. The court found that there is in fact a fundamental right to marriage equality. That notwithstanding the long existence of marriage laws, that the fate of one man and one woman. That, that actually discriminates against gays and lesbians. That marriage is such a core institution, it’s a core benefit that society provides to individuals. and the state is the one that has to provide this benefit. I mean, I was- actually worked with the state DOMA, um back in Oregon, back in 2004. And we use to say that there were between five hundred to a thousand rights for privileges that come automatically just by virtue of being married. And so, as a result, whether you had domestic partnership law or whatever, stays in this. We’re not entitled to those rights. So what the courts said marriage is a fundamental right and that has a certain legal meaning to it. It means that therefore the state cannot deny that right without showing a really compelling reason for denying it, that is very closely tailored, of why would deny gays and lesbians the right to marry when you were allowed heterosexually. And the court said, And reason was because the same types of reasons that protects heterosexual marriage, intimacy, autonomy, personal autonomy, personal choice. these all exist within a gay and lesbian couple’s relationship, there’s really no difference between those. And so, consequently, even though it has not traditionally have been protected or the indicia of marriage and the reason why we protect marriage. and call it the fundamental right exists in gay and lesbian relationships. It also noted that marriage is not a static institution. It’s changed historically over time. In our perceptions of marriage, perceptions of roles between a husband and wife changed over time. So, we can’t just be set by the virtue of the way the marriage may be started out initially. But most important, the court said when we were talking about laws in an essence have a discriminatory effect on gays and lesbians. Not just affecting them, you’re affecting their children. You’re placing a sigma upon the children and they too are going to be denied certain types of rights. That are for gays and lesbians the right to marry, safe guards children as much as it safe guards the two individuals who are engaged in this marriage. That was the majority ruling. So, it basically means that, that is the law of the land, in this instance. Any law that is contrary to it, or any practice that is contrary to it. Has to go by the way side. Now, there’s a 5-4 decision. So four justices disagree. They disagreed on several different grounds, and what I might be getting into too many technical points. The main thing I think that was truly a judicial restraint. This is such a controversial issue, but the legislatives take care of it, but it’s not having judges doing it. And of course the criticism often happens in these types of cases is squat. Well, you only have really one justice, Justice Kennedy effectively deciding what the constitution said. You don’t have 50 different state legislatures, legislatures making decisions about this really important issue. So, they said, we need to wake legislatures, to act on these issues. But the court also was kind of critical about the analysis of trying to analogize gay and lesbian relations to marital relations. But to an extent, they already lost that battle many years ago. With the way the court had looked at gay and lesbian relationships and elevated them in several cases. But one of the main points also that the court, the part that the senators talk about. Is that by virtue of now finding, there’s a fundamental right for marriage. That this be on a collision course with people who have certain religious beliefs and certain religious convictions. Of whether they be affect by these laws, such that they may be put between a rock and a hard place, when it comes to whether they follow this law. Well knew what there were talking about, because they had they supreme court. Again, so entity, only a couple years earlier ruled in a very important case. And this is the Hobby Lobby case, I’m sorry the first case listed on there that’s the marriage equality case. This is Hobby Lobby case and I’m going to go into a little bit more detail because this is actually the case about religious liberty. Now this was challenge to Obamacare, a contraceptive care mandate that required all private employers over a certain number of employees. Private employers to provide a host of insurance coverage, including contraceptive care. There’s a committee under the department of Health and Human Services that advises the administration about what are necessary things to include, within any type of coverage insurance coverage. And they clearly said providing various forms of contraceptive care. That’s clearly something that should be included in all of these health plans. Now, this case was counted as several different cases. Some said oh no it’s another challenge to Obamacare, some also said this is the next line of the religious liberty cases. Some loses said this is the next stage in a case called citizens unite. I’m sorry, I’m throwing too many cases at you all. But you may also know a little bit about Citizens United, that is very important. Citizens United was a free speech case, also coming out of the first minute. Free speech case several years ago, where the supreme court extended free speech protection, in a way it had not before. We’re not going to get into technicalities here. Two corporations to engage in political speech and for the court a long time to send one of the main ways that you engage in political speech. Is your ability to make contributions to a political candidate. And basically they have a green light to large incorporations, providing unlimited sources of funds for political campaigns. A lot media attention, a lot of people complain. And one of the things that they said is, wait a corporation is different from a person. Why, if I have a free speech right, does a corporation have a free speech right? This is part of the controversy, of the reason Hobby Lobby was seeing in an extension of that. It was because the plaintiffs of Hobby Lobby were Hobby Lobby. Which I passed one coming up from Salem today. We just got to the first one in Salem in Oregon. Five, pardon me, five hundred stores nationwide, thirteen thousand employees. In essence, it’s at home or what you want to call it a hobby, right? We can get you various types of creative crafts items. A nationwide chain, happens to be privately held. Held by a family relation committee. But they in essence, by being privately own, means it’s not publically trade. It’s not on the stock market, but it is still a for-profit business. And a for-profit business created not for the purpose of any kind of religious ministry. It’s not religiously orientated business, but it has a lot of religious things in it. And the owners are religious. Here they are claiming, that the businesses free exercise rights would be violated if they were required to provide certain types of contraceptive coverage, for their employees, so it raises the question. Can a business actually make a free exercise claim? Can a business have a religion? Can it have a faith? And one of the things you have to remember is a reason, and I’m not a corporate law person. But they are my understanding about corporate law is, one of the reasons why we created a corporation law back in the 19th century. Was to provide a certain amount of distancing from the owners of the business from the business. And we create a separate identity, a separate legal identity for the corporation. The Greens are sincerely believe, or sincerely opposed to certain types of contraceptives coverages. There’s actually another plaintiff in the case, [INAUDIBLE] a wood working outfit. That has about 900 employees also closely held, but publically traded, owned by Mennonites And they also get rights at certain types of coverage too. So the question was in both cases because these are businesses were that businesses themselves burden in their religious beliefs. By virtue of having to provide certain types of coverage which their owners were sincerely objecting to, a conscientious objection. For a degree of this case at first instance, so this is what the court had to consider in essence. As I said on a couple radio interviews. Can McDonalds pray? Can a business have a soul? So, the court made a very divided decision here, it was really in a sense fight for the important decision for the concurring opinion. In the middle, but just as an opinion. But the court said, yes, said in fact business can raise a free exercise claim. Now need to become even more technical in a bit. Part of the problem with this case, or at least part of the problem with this area. Is that this case actually was not brought under the constitution. There’s a federal statue, this was mentioned, the religious freedom restoration act, or REFRA is the short hand version for it. That was enacted in 1993 by U.S congress. The reason that it was enacted is because in 1990 U.S supreme court had actually ruled in a case in Oregon. That a law called gender applicability, it means a law that is not oriented towards religion rather a general law. This still applies to religious organizations. Do you give religious organizations an exemption for complying with the law, if they religious objection to? And point of that case is no, we’re not going to do it. I’ve dealt with a couple of drug counselors who are also members of the Native American church. They ingested peyote as part of their religious belief system. Their sacrament and they’re fired from their job. It’s taking drugs, actually charged with criminal drug possession. And they want to raise a free exercise claim say, “Hey we should have an exemption from this law because of our religious beliefs, we’re not taking these drugs to get high in the sense of what people do we’re taking them for the sacrament of pungency” Which the Supreme Court said no. Government doesn’t have to show any type of additional reason to whatever sanctioned you under this law. We’re not going to recognize it for exercise claiming. So what congress did in 1993 is they wrote this law and they wrote this law and said, “When you have a religious objection to a law that is generally neutral, eyes-crossable, generally applicable, facial neutral, that the government still has to use a higher standard of review.” Has to show a compelling reason for why this law should apply to you and also explain why the government can’t give you an exemption to the law, in according to other people to adhere to the law. So that’s what Hobby Lobby was claiming. Hobby Lobby was claimed because it was Obamacare, which is federal law. Religious Freedom Restoration Act actually applied to Obamacare. Such as even though Obamacare, facially neutral across the board, all businesses, doesn’t matter what you are. You have to provide contraceptive coverage. Shouldn’t apply to us. Why? Because we have a religious objection to it, that the corporations has an objection to it. So what the court had to find first is. Is a corporation a person? Can a corporation actually raise religious claim? Court kind of danced around this a little bit. And actually said, well there’s really no reason not to have a corporation raise a religious claim. They actually found one case, where back in the 1960s where the owner of an orthodox deli. He was Jewish, orthodox Jewish, had raised a filed law suit against the Sunday Closing Law. And said it burdened his religious belief because he was forced to be closed on Saturday because of his religion and forced to be closed on Sunday because of the law. And he was at an economical disadvantage. Went to the United States Supreme Court, the Supreme Court actually ended up dismissing the case. They said that you don’t have a strong claim. And Justice Alito who wrote the Hobby Lobby decision, said, Ahhhaaa, no one ever questioned at that point in time, whether that this was what raised the claim. So therefore, we have what’s called precedence. There’s one case out there. It gets precedence for why maybe a corporation can raise free exercise claim. The other thing that they did was they looked at this law, the Religious Freedom Restoration Act. It uses the word, persons. And says nothing that excludes corporations from that law, the law doesn’t say anything on the other way about corporations. So we’re going to just assume that corporations should be included as a person, under the Religious Freedom Restoration Act. They said after all, all the corporation is, is just a bunch of people getting together. Organizing for their common purpose. So, there’s really not a difference between a corporation and a person. Now, what was troubling to me about some of that analysis, is in Justice Ginsberg made a really, really good point. In fact I usually don’t read from a case but, let me just read what she said in response to this idea of corporations. She said, ” A corporation is an artificial being. Invisible and tangible existing only for the contemplation of the law. Corporations have no conscious, no beliefs, no feelings, no thoughts, no desires. The reason why this should not apply to a for-profit business, the free exercise right.” She said,” Religious organizations exist to foster the interest persons subscribing to the same faith. Not so for profit corporations. Workers who sustain the operations of these corporations commonly are not drawn into one religious community.” And she’s saying that Hobby Lobby is not a religious community. It doesn’t have religious purpose. It doesn’t have the same functions as why provide free exercise protection for individuals of faith or for religious communities. They’re very different types of entities. We shouldn’t so quickly make corporations into religious entities. And actually, someone who has worked very closely with religious organizations for many years. And served in the National Counsel of Church’s Religious Liberty community for a long time. I argue that this actually is, is the dumbing down of religion. The message in religion in this instance, therefore loses its significance. Loses its distinctiveness, and almost any institution now can be equilavent to religion. At least for the protection of the law in essence. As a historian, I believe that the founders actually put something in the Constitution. They purposely said free exercise on religion, no establishment of religion. It’s the only type philosophical, ideological belief system, that is singled out for recognition in the Constitution in the First Amendment. In essence, the government can speak politically all the time, but then does that give us all the rights? They can speak artistically, it can speak about economics, simply the founders are basically saying that something about religion sounds different here. So therefore, the government should be interfering with religion or doing religious type thing. Religion is somewhat distinct. Now you may disagree with that on one level or the other. But the point is, that’s what the First Amendment says. And without a doubt, by virtue of allowing for-profit businesses that are not for the purpose of any type of religious function or ministry. To actually raise a religious claim, in does seem to be, kind of the basement of religion. Another reason I disagree with having a free exercise right for corporations. It’s because as Sarah had mentioned, I actually helped write this law that they were relying on, the Religious Freedom Restoration Act. There’s a broad correlation of civil rights in religious groups, and like again, this is what I’m working on in Washington D.C. And we came together for very many different reasons. I was involved in order to try to provide, to make sure there’s religious liberty protection for religious minorities. I’m not saying the other side does concern about that. But we came with very different agendas, as it is. And we were able to draft this log for everyone to read them. It was a very tenuous correlation. ACLU on one side, Homeschooling Offense on the other side. Way across the room, okay. I can tell you for my own personal memory, if anybody in all out correlation meetings, when we were actually presenting the bill, as we wrote. To Senator Hatch, to Senator Kennedy the two co-sponsors of this bill. If anybody had said at any point of time, “it by the way, this law is also going to protect for-profit corporations” the law would’ve never gotten passed. There’s no way that would survive the correlation. There’s no way Senator Kennedy and Senator Hatch would have agreed on that. But unfortunately, that’s not explicit enough in the legislative record. So as a result, the court said corporations have a soul. Once you found that corporations have a soul, and just see it, it is distinct from the owners of the corporation. And the question was, was there, was there religion burden? And I’m going to get to this in a little bit later, and pick it back up again. The court really said, well of course religions a burden because the penalty for not complying with Obamacare is thousands and thousands of dollars a day. And it per employee, and I think with Hobby Lobby the potential penalty was going to be in the four hundreds of millions of dollars for just one year. If they didn’t provide this coverage and the court said that’s a burden. Now, I disagree with that way of analyzing. The burden should be on the religious compliance of the law, not on the penalty. To me, that’s the confusion of two separate, who were related but just two different issues. I mean, once you show that you have a burden, then maybe a penalty will attach. But you need to explain how complying to the law, in law itself burdens your religious practice of the corporation. We’ll come back to that in a minute. Once that happens then, the burden shifts to the government, the government has this strong compelling reason for an act in this law. The court said, ahh yeah maybe this contraceptive coverage is important. Obamacare is important. But you know what, it’s not tailored. And what that means is that, there’s other ways you can exempt this entity, these businesses. And part of the reason was, there was already in the law, some exemptions from compliance with Obamacare with the contraceptive coverage, for religious institutions, for houses of worship. So what the court said, because you can give an exemption to them, there’s no reason why you can’t give an exemption to these for-profit businesses. As a result, they can in fact, raise this religious claim, and of course they prevailed on this religious claim. Now, why this is important and again, it’s because of course, even though the court was talking about a non, pardon me, a for-profit held business. And they said, that’s all what we’re really talking about in here. The court really did not put in any really constraints on how far this principle will now go. And actually, I talked to some of the colleagues who teach business law, just to get his confirmed. In what I understand is actually in the United States between 85 to 90 percent of the businesses are actually not publically traded in this country. It’s a very small number of businesses that actually are on Wall Street. So we’re talking about a large number of businesses around the nation, that actually are for-profit, but are privately held businesses. Now as so far as employees are concerned, I think it’s about 45-55 or something like that. The big corporations certainly employ a whole lot more people. But still, in any town, you’re going to find mom and pop stores, host of businesses that are not publically traded. What does this mean? It means this decisions basically allows for individuals who own certain businesses who are in fact, these businesses are incorporated. Still, you make decisions based on their religious beliefs of whether they want to comply with certain important laws that exist in the workplace. These could be thing like waging hour laws, these would be non-discrimination laws and employment laws. These could be laws that affect public accommodations, what I mean by public accommodations in the law. It means any business basically open to the public to certain public, restaurants, hotels, shops, etc. Now you’re a little far away from important information, if you keep paying attention to important news. ‘ That there’s been some controversy going on in Portland for the last couple of years about bakery called “Sweet Cakes Bakery” And Sweet Cakes Bakery is owned by a couple of people without faith and a lesbian couple came in said we would like you to make a wedding cake for us. They said no we would not want to be complicit in making a wedding cake for a couple of lesbians who are going to be married. which would somehow be complicit in either recognizing or proving of that relationship, so they refused to do that. So this case has gotten some national attention, of now they have been sanctioned by the Bureau Labor and Industries which is our discrimination branch In Oregon and I believe they were fined about $150,000 which is some significant amount, I think is high. For this, so they’re filing a suit and claiming in fact, this is a violation of their free exercise right, that they can raise this claim even though it’s business. This one, has been charged with form of discrimination. So this is where the brothers are kind of hitting the roads these days. There’s one other issue that comes in on this case doing with Hobby Lobby to you. And this has run through occasions across the board with businesses in some respect but with other entities that might want to raise claims of a religious exemption to comply with non-discrimination laws, public accommodations. And we made this claim with Hobby Lobby and it’s actually coming up again in some new cases the Supreme Court just granted to serve on of similar nature. And that is what we called the third party burden that exist in this. And traditionally the way the court has talked about religious accommodations, if you’re going to accommodate someone’s religious beliefs against an otherwise valuable law, and important law, that it’s neutrally applied. Then we need to look at how accommodating that person’s religious belief affects what you want to call it “innocent third parties.” In essence, to the innocent third parties in this case. On Hobby Lobby, they were the employees. the employees that were now, not going to have contraceptive coverage in their insurance plans. And would have to go out and purchase it over the table and brief what I wrote to the Supreme Court and some law professors and said This is a consideration you need to take into, this formula. Even if you are going to find a corporation as a person, has a free exercise claim and there’s a burden on their religious beliefs by complying with it. We still need to look at the effect on giving that entity of religious exemption and how it affects third parties, this being the employees. Supreme Court kind of side stepped that issue and said well because there’s an availability of this, applying this religious exemptions to the corporations. Which has this out for the insurers paying for the coverage themselves. We’re not going to say that there was actually a burden on these women at this case. We’re not going to see this as it is. But what we argue in the case though, according to Gutenberg Institute which tracks different aspects of abortions and contraceptive laws. Is it many of these contraceptives, many of these women would be having to shell out as much of thousands of dollars a year, in order to buy these contraceptives over the table, instead of having them being provided through their insurance. So if you’re working for Hobby Lobby, and you’re making, they do pay you a little bit over the minimum wage. But you’re making not that much of a minimum wage. That could be a significant financial burden on you. And the point is that, in essence, in order to accommodate the religious needs of the owners of Hobby Lobby. That they are basically transferring the cost of that accommodation onto their employees. And the employees who may or may not agree with religious beliefs are subsidizing their religious beliefs of their employers. At least traditionally under the law, the court has said no, you can accommodate someone’s religious beliefs. That’s good, we should be doing that. But when you have someone else having to pick up the tab for that accommodation, it places a burden on them. That’s maybe as far as we are going to get. We’re not going to go quite that far when it comes to religious accommodations. But the court really did not succinctly answer that question. So, that is still out there. But, why is that a problem? Why is that an issue? Well, may depend on where you live, may not be an issue in some places and other places. If you can raise a claim that you want to be exempt from a law because of your religious beliefs. If you’re a pharmacist and you’re working for Walmart and you disagree sincerely on religious beliefs. I think many people do about dispensing certain types of contraceptives. Should we accommodate that pharmacist? Well, I think it might be a okay to do that. I think it might be good to do that, if there’s a number of pharmacists in that pharmacy, who can then provide that service right. I think we are better as people if we can realize the religious diversity that we have and people don’t necessarily agree on all issues the same. What happens if you are a pharmacist in the only pharmacy in Eastern Oregon or Eastern Washington? And you’re on your religious grounds. Once again, these are sincerely held religious grounds, but you object to the dispensing of these items. Then what does that person require to do? They are required to drive a significant distance to try to find a place where they can get those services. So that’s creating a burden on innocent third parties in a way it is effectively subsidizing the religious beliefs of that individual if we exempt from these laws. so this becomes part of the problem that is existing. Let’s talk about Kim, well let’s hold off on Kim Davis for just a minute. Let me talk about one other technical factor that’s problematic here. And that goes back to that question about why does this substantial burden upon religious. Right. Under Obamacare, under the requirement that you provide for contraceptive coverage. These plans, these insurance plans that people are purchasing for, businesses are purchasing. The way that they work in vast fast of the majority of the cases. Is that there’s no additional cost to the employers to include this contraceptive coverages. to this general package deal. So the fact that they are providing for contraceptive coverage is not financially burdens them at all. There’s not additional out light when it comes to this. So what is the burden? So the burden is that I have a plan, I religiously oppose to contraceptive coverage. I have a plan that I know some of my employees maybe will be able to access this. maybe actually get access to this coverage. And so I’m, I guess facilitating them and engaging in conduct with which I disagree. Which I morally, religiously oppose to do. I invite you to question the extent of the burden to exist in some of these cases. okay. Several reasons, what does the employer really know? The employers knows that they actually have contraceptive coverage in their insurance plan. So they know at any particular time whether any of their employees are actually accessing that coverage? No, we have something called the Federal HIPPA laws, which prevent the employers from actually knowing your personal medical history or what you’re taking, what types of drugs you’re taking. They know that they are offered these drugs under their insurance plans. But they don’t know if one day to the next, whether if any of their employees are actually going to be utilizing these plans. So what is the religious burden? The burden is just having it in the plan. The burden is somehow, as the argument has been that we are somehow complicit in this conduct in which we disagree. So this case I worked on many years I was in California. That dealt with a very debacle, and she owned a small apartment building, this small complex. And she was worried about, and she did not believe in gay relationships and she didn’t believe people who live together who aren’t married. So she refused to rent any of their apartments to any couples she thought were gay or to unmarried couples. The reason being, she believed that it was sinful to engage into that type of conduct. And that she would somehow be complicit, facilitating that conduct by renting an apartment to them. She was charged with filing the California Fair Housing Law and Unruh Act and was fined, goes to the California Supreme Court. And I remember making a brief at the California Supreme Court and said “I invite you to just consider, what is the nature of her religious burden here?” Her burden, her religious objection is “I believe that gay sex or unmarried sex is sinful.” To a degree, speculative, one couple brought this case up front and said yes we’re unmarried. Consecutive, you rent to two men or two women, are they gay? Are they lesbians? She didn’t really know. She didn’t know if they were actually engaging in sex at any particular point of time. Her injury was really a psychic injury. Her perception to something that was going on here, in which she disagreed. How was she complicit? What is she doing? She’s renting an apartment. She’s not encouraging sex, she not encouraging any particular type of conduct. And the California Supreme Court agreed. There was not a substantial burden on her religious beliefs, just by virtue of renting apartments. She herself was not engaging in more of her moral self and she was not forcing or encouraging anyone from engaging in immoral activates. So back the Hobby Lobby case, in these similar types of cases. Where is the religious burden? Now again, this is a difficult issue, I realized. Some of these cases had come up where a wedding photographer based out in New Mexico. A wedding photographer again devote religious beliefs did not want to take wedding pictures of a gay or lesbian couple at this point. And said no, because this is a kind of artistic of what I do and also my name is always on the photos so these people know who I am. And maybe some implications of someone may believe that I am promoting this particular type of conduct. That I’m condoning this particular type of conduct. The New Mexico court have rejected that argument. But still, you can see in maybe some potential some businesses that could be something where you can see someone being closely identified with conduct which with they disagree. But many of the different businesses they’re not. And by virtue of just baking a cake, by virtue of just doing a host of other types of thing where someone comes in the door. You’re not necessarily encouraging that activity, so the injury to yourself, like I said, is kind of that psychic injury that I know that this is going to happen. To the extent in which this person is actually being burdened themselves, the relligious burden. It seems a little removed and dextral. Let’s go to Kim Davis. Kim Davis was the county clerk, Rowan County in Kentucky, where she’s very devote about religion and is an elected official, whom she refuses to issue marriage licenses. What you do is, a couple comes in you issue the marriage license and they do off some place and get married maybe they get married by the clerk. or who knows they have to get married by. So she did not necessarily have to perform the weddings. All she was doing was issuing these marriage licenses. But she is saying that I am complicit to this somehow. That my name being on the marriage licenses, somehow indicates you know that I’m approving of this or I’m promoting this. And I am religiously opposed to gay marriage. Which she is sincerely opposed to legally gay marriage. She was filed into contemporary court and was in jail for 7 days. She initially refusing it and any of her lower clerks actually giving these licenses. She finally conceded that but she’s still been kind of in the mix here and saying my free exercise rights are being violated by virtue of the requirement that I have to fulfill my job obligations and fill out these marriage licenses some type of [INAUDIBLE] Well again, she needs to tell us what the burden is on her religion. Okay, how is she complicit? Well, I can give you a personal story. Many, many years ago, my first start practicing. I was actually practicing in Alaska and ended up becoming a magistrate judge in the Alaskan Court system. And it’s a very busy court where I was and I was on the bench almost all day long doing DUIs, minor assaults, these kinds of thing. But one of the things of my responsibility or my other responsibilities was, I actually over saw our court’s clerk office. I had seven clerks under me, I had a chief clerk who really ran the office, but I was technically her superior, her boss. And one of the things I was authorized to do was to perform marriages. The chief could perform marriages and we had one other clerk to perform marriages. So there were three of us who were authorized to perform marriages. They usually did most of it because I was on the bench for most of the day. But many times, one or the other were busy doing something else, they call me and see if I would do a marriage. And normally, it’s at my lunch hour and I knew I was going to go back on the bench later on in the afternoon, I really hated doing that. but it’s part of my job. Alright. I’ll give you the traditional scenario, I’m not trying to flip here. Traditional scenario, it was calling Judge Green, there’s someone who would like to get married here, we need you at this instant. I knew what it was going to be, I was at lunch time. Who gets married at lunch time? This is probably someone who gets off at their lunch break to get married. And inevitably, the woman showed up with one of her best friends, wearing the nicest dress, with a nice bouquet of flowers. Most important day of her life. The husband is running a little bit late because he was coming from work. He shows up in his work clothes and I would normally say because I had these prepared for the, what I would call, things I would say for a wedding. I would say, “Would you like the longest version, or would you like the shorter version?” Inevitably the guy would say “Short version,” looking at his watch, let me get this over with. I hated doing the weddings because I just knew, I just have these bad feelings that these guys, I mean half of the time the women are pregnant. It’s kind of like this was not the marriage that I would want my staff to do. And in fact, I had several of these people in front of me later, where I was doing the divorces at one point of time. But you know what? I did because it’s my job. I was almost morally opposed to provide someone, I mean that’s where I would call clerks and say- “Would you please do this? I just don’t like doing this” It kind of gives me the creeps. But I did it. Now if you told me that somehow by virtue of my name being on that certificate. That I was condoning that relationship, because I was facilitating that relationship, I was encouraging that relationship. I probably would’ve laughed at you. I’m doing my job, I may disagree, I may not, you know, may have my suspicions that I don’t want to marry that couple. But this is what I need to do. That there’s no way that I am complicit in whatever conduct that they’re engaged in, as a public official. This is why I think Kim Davis is wrong. She may have a sincerely religious belief that gay marriage isn’t correct. But one, she has a job she needs to do as a public official. But then two, I really still don’t see what burden on her religious beliefs is, is to do her job. Now, I’m not sure exactly where that status of her, of her contraversy lies at this particular point in time. But this has become the new, whatever, main controversy within Church and State. It has been the extent of which, people of faith whether engaged in a business, whether engaged in some type of public position, as a public official. Can at some point of time say, ” my religious beliefs tell me that I should not be able, or I should not be required to follow the law, non-discrimination law, housing law, public accommodation law, or provide the services that I’m required to do by the virtue of my job” Because if I do, I am somehow complicit in the conduct. Now, I agree, I think it’s some instances maybe we should, at least think about it. After Roe vs. Wade in 1973, Congress passed something called the Conscious Laws and Conscious Laws, was connected to Federal funding for hospitals. And it basically said, and all hospitals get federal funding. So it basically said, “If you are either a religious hospital, a Catholic hospital, or you’re a Catholic doctor, then we’re not going to require you to perform an abortion. Because that’s against your religious beliefs I can agree on that accommodation, to force a Catholic doctor to actually perform an abortion, that’s against their religious belief. It’s not psychic, I mean they’re directly involved in that event. That is a burden on their religious beliefs. But there’s a continuum here, we should not necessarily think that everything offends your religious sensibilities. Day in and day out, rises to the same level of that burden, just because you may be offended. On the fourth Amendment laws, the search and seizure law. You’re learning a lot today. The fourth Amendment law, this is old concept called Reasonably Expectation of Privacy. And it basically means, for example, I use to give this example of smoking marijuana, that in Washington and Oregon, but anyways. Smoking marijuana in public right? And a police officer stops you and says “You’re violating the law” since you’re violating privacy. Oh no, how can you expect to go out and do something that publically. That you somehow have a right of privacy to protect yourself from the way the law is applied. People do not enter into the commercial marketplace with the expectation that they are going to be immune from an increasing number of regulations. Safety regulations, right? Health and safety, employment regulations, etc. Many of which they may find offensive, many of which they would rather not comply with. I rather not pay minimum wage, alright, but you do it. Because those are the expectations, those are the cost of running a business. So when you have that realization of entering the marketplace, as a conveyor or some type of stewardess of some type of business. Then built the ability to then to exempt yourself here and there. Based upon your religious beliefs and once again what we’re talking about is corporation businesses are the ones that are actually are going to do that. I really wonder the extent of which that is something that the society to be necessarily be encouraging for us to do. Again, I don’t have the exact place to say where these lines need to be drawn, this is going to be probably, needed out in a lot more litigation. The Becca fund is actually one of the main groups that has been promoting many of these claims. And so, we’ll have a long way to go, but to a degree, what it is, goes back to my initial thesis. Is it, this is a conflict, not that the Supreme Court created parse, but on the one hand they said there’s a right to marriage equality. On the other hand they define kind of, forgive me if I say this, an exaggerated few of what is actually a violation of someone’s religious beliefs. When it comes to sincerely held religious beliefs. And there’s a conflict there. The Supreme Court is going to have to resolve that conflict now Washing-, uh, one last minute. Once before the court right now, seven different lawsuits have been consolidated, that these are not by for-profit businesses, these are actually by religious organizations. Little sisters of the poor out of Colorado, many other run and kind of sharable social service, schools, of a variety. But these are all religious institutions, religious universities. They already, now as a result of an expansion of the Obamacare regulation. They already qualify for an exemption from contraceptive care coverage. So they don’t have to provide the coverage. What they’re objecting to is filling out the piece of paper that says “I want to be exempted from this law” It says, by virtue of filling out the form, they are actually, one again, providing the avenue or they’re being the mechanism for their employees, to then go get contraceptive care through the insurer directly, without the religious organization being involved. So these are the cases for the Supreme Court. Now as someone whose litigated cases at the Supreme Court, I’m a little troubled by that because almost all of the circuits said there’s no religious claim here. One circuit has, and if the court actually granted certain before that circuit ruled. I don’t necessarily see the religious claim here, in essence that I wanted an exemption from the law based upon my religion. But I don’t have to tell you that I want that exemption of the law. Or somehow I’m complicit in, in violating my rights by saying relieve me in compliance to that law. I think that’s a very tenuous for exercising. So this is my concern, there’s a lot of confusion going on right now with the law. That exactly, what is a religious burden? And it’s going to take a while for the Supreme Court to work this out. I’m not sure, not optimistic, but we will see, so stay tuned. So, thank you for bearing with me with kind of some technical discussions here. [Applause]

Otis Rodgers

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