Nearly three quarters of the American People thought he was irrev irrelevant and i dont know just mean black folk i mean the naacp came out against him. The urban league was against him. The leading black era. Carl rowen is against him. Ralph bunch, another noble peace prize lawyer comes out against him. Supreme Court Justice mash marshal turned on him. The media, Whitehouse White folk and black folk turn against him. And that is how he navigated the last year. He would die broke and in the last year of his life he cannot get a book deal a paid speech he is disinvited to the whitehouse and black church and this is the last mile of the way when king has to walk. So when martin takes the bullet a year later. Killed april 4th 1968 and he believes and dies believing that everything is everybody has turned on him. The cosmos have shifted against him. Five decades later, martin was right and everybody was else wrong but that is not the way he got out of here you can watch this and other programs online at booktv. Org. Ilya shapiro and david gans discuss the hobby lobby case that establishes the right of forprofit corporations to be exempt from the law based on religious beliefs. This is about an hour and a half. Good afternoon and welcome to the Cato Institute. I am the director of the cato center for constitutional studies and your host for this event. I want to also welcome your cspan audience and those who are looking at the event on cato Live Streaming and later through the archives. We are hear to discuss religious liberty as it may or may not be exercised in the context of the modern Business Corporation pursuant to statory and constitutional law and mark the new book on the subject called religious liberties for corporations . I note the title ends with a question mark. Ilya shapiro and david gans talk about the hobby lobby case and the block buster discussion the Supreme Court handed down at the end of their last term rejecting the obamacare regulation that provided employersponsored Health Care Plans to provide free contraception coverage. It is based on debates that took place earlier this year at the National Constitution center in philadelphia. In the debates and in this book our posing advocatingeadvocates if they can exercise claims under federal law and whether businesses, owners, officers or directors with religious objections should be exempt and what the implications are now the Supreme Court ruled in favor of hobby lobby. I hope they will address a section along the way namely whether the religious liberty has become an exception to our governor rule needing to be justified casebycase or by a properly read constitution it is government rule that has to be justified. Our two speakers have 12 minutes each to debate the issues starting with ilya and then turn to professor barnett for a commentary and then to the audience. I will give the two main speakers brief introductions. I will introduce randy before he speaks. Ilya contributes to a variety of pub publications and regularly provides commentary. He has provided testimony to congress and legislatures and filled a hundred court briefs. He was a special assistant advisor to the Multinational Force in iraq and litigated at two large law firms. David gans is the director of the human rights and Citizenship Program at the constitutional accountability center. He is the author of numerous scholarly works on constitutions, texts and history including the centers text and history narrative series. He regularly participates in Supreme Court litigation. He joined after serving as Program Director of the center for constitutional demomeracy. And as an attorney with the brendon for Center Justice at nyu school of law. We will begin with ilya shapiro. Please welcome. Thank you. [applause] well thanks very much for everyone for coming. And those of you in cspan land for watching. I hope you are enjoying your insomnia at 3 30 in the morning. By now everyone has ruled that the Supreme Court ruled that corporations can fire women who use Birth Control and religion trumps all over recourse. Or that is what my twitter feed told me about the decision of burwell vs hobby lobby. It had nothing to to with the power of big business freedom to use contraception or balance constitutional concerns. Hobby lobby was a straightforward statutory ruling on whether the government could override religious freedom. The Supreme Court ruled that corporations cant be forced to pay for their employees contraception if doing so violated their religious beliefs. Lets unpack that and step back for a second. The department of health and Human Services including 20 contraexceptions as part of their minimum essential coverage that all insurance plans had to have to satisfy the obama employer mandate. Through that requirement, from the legislation, all they said was you have to cover preventable care and they listed 20 contraceptives and included in that are four that businesses, nonprofit and forprofit objected. They were morning after pills and ied that work by preventing fertilize fertilized eggs from implanting. The founders and owners of the hobby lobby store protested this. I have never been to a hobby lobby. But they considered it part of their christian duties to provide Good Health Care to their employees but object to the four items on the list of 20. Not complying with the mandate meant 1. 3 million in daily fines. So the greens on their own behalf and their corporate entity, hobby lobby sued the government on the first uh amendment and the religious restoration act of 1993. It calls for casebycase adjudification of Government Actions. It was passed in the house and senate and signed by president clinton in 93. Its lead sponsors were Chuck Schummer in the house and ted kennedy in the senate. It was to reverse a 1990 Supreme Court ruling by the humanist justice that approved the constitutionality of rules that burden religion so long as they didnt specifically intend to discriminate against religious people. That is if objectors wanted exemption they had to seek it from the legislature not the courts. Courts are supposed to look at if the Government Action at issue imposes a significant burden on religious exercise. If it does the government must show it is nevertheless pursuing a compelling interest and using the least restrictive means of achieving that interest. The burden here is clear the government didnt contest there was a substantial burdens on the greens hobby lobby. The Court Assumed that the government asserted interest was compelling. And the way the federal government litigated the case was curious. It didnt say there was a compelling interest in free contraceptives. They said Public Health and broad interest that are too vague when you try to satisfy scrutiny by the court. And lower courts ruled against the government that they were not compelling. The Supreme Court assumed that interest was compelling and the case came down to the third bit. Whether this was the least restrictive means of achieving the governments goal. And that is where the government lost. It didnt could not show there was no way to provide free or cheaper control without burdening believe burdening believers. The guarantee could governor government the government could pay or offer what they offered to nonprofit organizations some of are still litigating but none were offered to the forprofit businesses. One is called Little Sisters of the poor. Any of you who who are plaintiff lawyers i suggest you get them to be your lead plaintiff on any subject. Health and Human Services chose to force people to do their bidding and the court said you dont have to do that. No one has been denied access to contra contra contraception and there is more freedom for allamericans to live their lives without checking their conscious at the office door. It was a mandate instead that didnt have sufficient justification. Before i sit down and end the explanation of a rather simple case i guess i should address the hub about the corporate rights. Afterall the title of the events and book is about this. After all, as catos brief described, it doesnt matter if you lawyer up your argument or claim in terms of the corporation asserting it or the founders owners at least in a closely Held Corporation and you can conceive of a public corporations where the interest are aligned. It is the people whose beliefs are being infringed. A legal term that applyies to all persons and unless congress spec specifies nonhuman enities. It is like applying the term person to a statue about abortion or the death penalty. It is nonsense sensical. It is true that hobby lobby doesnt pray but it is hard to say it doesnt operate according to religious ordeals. It closes on sundays, doesnt sell shot dmraszglasses, takes ads out for bring people to jesus, and refuses to bring beer back. When trucks go out with items they are empty and instead of being empty they will hall other stuff, including mostly beer but hobby lobby doesnt do that foregoing considerable profits. But the profit model or Business Structure changes anything. Because modern law in every state lets corporations pursue any lawful purpose. They dont just have to pursue the bottom line. But social responsibility is a trendy well it has been trendy for 1015 years or more. Starbucks with Fair Trade Coffee and whole foods and chipotle cares about freerange meat and google says dont be evil. Lots of business organizations have ethical procedures to which they pursue their mission. And there is nothing unusual about that. And i dont think it being religious it is subject to less protection. None of these considerations undermine the rights of humans including owners officers, and shareholders. This protects the religious liberty of the humans who own and control the companies. Association rights flow from the individual rights of the people who make up the groups to which we attribute those rights be those groups corporations, partnerships, unions paternal organizations, political advocating groups buddies playing poker this didnt even start with Citizens United that freed up independent political speech for associations including corporations and unions. For a long time we have understood that corporations and other associational groups have rights. If they didnt then the police could storm the offices of ibm and they can all of their computers. Or say the mayor of new york likes Rockfeller Center and wants to move there he can take it without paying just compensation in violation of the fifth amendment. So it seems odd to say as an llc or partnership or whatever you can pursue a profit it is okay but once you incorporate there is a magical switch where you lose your concern rights. Nor does profit motive matter. We have jewish and muslim butchers to pursue profit motive according to religious beliefs. One of the coplayoffs of hobby lobby was a christian bookstore. Mardel books is in it to make a buck but they are selling christian literature ex exclusively. Lets put the corporations are not people to rest. If you piece their corporate veals it is their owners that bleed. A publically traded company could align all of its stakeholders beliefs to a claim i object but it is possible. If hobby lobby went public tomorrow and all of the investors and so forths laid out how it pursued its business wasnt defrauding anyone i dont suppose there would be anything wrong with that. Here the First Amendment protects free speech exercise and certain speakers and people dont lose their rights first uh amendment or otherwise when they get together. But the larger conclusion to draw and this is getting to what roger said he was hopefully we would get to and that is the essence of freedom and the government cant force people to do things that violate their consciousness. Some may say there is a conflict between religious freedom and womens rights but that is a false choice as the president says. Without the rule women are free to obtain whatever isnt illegal but they just cant force their employer to pay for it. If hobby lobby employees were not having access to contraception we would have heard about it. The interception of corporate right and religious liberties is whaubt what this is about. The economy is being increased over to the government. When something is treated like a public utility we are forced to fight for every step. The more the government controls whether health care, education or ever even marriage it is a bigger issue. We largely agree inside reasonable margins but we have disagreements about social programs, economic relations and so much else the government dominates at the expense of religious freedom. So they are rightly concerned they are being forced to do watt their religious beliefs are against thought that comes with the collective territory. Thanks. [applause] thanks so much. And thank you for cato for putting on this fabulous event. It is really a pleasure to be sharing the stage with ilya shapiro and roger who sometimes we agree and sometimes we disagree but start with First Principles and look at the constitutional. Hobby lobby was applying a statute using casebycase ajudication and this is a big deal. This case marks the first time in the nations history that the Supreme Court has given secular forprofit religious rights and given them religious exemptions. It is rare to say this is the first time something has happened that the Supreme Court said. You can look at instances in the recent past like heller, the gun case but it is very rare to say the is the first time the Supreme Court has said corporations have this right in more than 200 years of our nations history. But hobby lobby is big news because it says for the first time secularfor profit organizations are entitled to religious right and entitled to seek exemptions from general business laws. It has opened the do to new claims of religious exemptions and it is case by case. There is no concrete placement saying these people dont get exemptions but these people do. One of the things is we have to see what is going to happen. Will the court give businesses religious exemptions from antidiscrimination laws as well . It says they will not perhaps in the rape context but gender and Sexual Orientation is up for grabs and time will tell. There are three big thinks going on in hobby lobby and i want to focus on that. First, what is going on as i started with this is a major expansion in the rights of corp raises and at the end of the day for the first time in history, the court extended the religious freedom rights and that has never been according to them in over two centuries. What is important is the kind of extemption. And that is a big part of why myself and others think the court is going in the wrong direction. So let me try to say a little about each of those and then maybe i will try to address ilyas point. This book is about addressing the larger issues. I want to start with the text and history of the constitution. I think what we are seeing in hobby lobby and perhaps other constitutional cases, like Citizens United is the Roberts Court taking us further and further away from having a basic understanding about the rights of corporations. When the constitution was founded, it was clear that corporations are not part of the people and giving them equal rights rights. James madison talked about extending to the individuals the great rights of man kind. When it came to mentioning corporations the framers were worried about doing so. The framers said we dont want to create that but they are worried about making corporations artificial entities and at their core into huge powerful entities and they declined to mention corporations. We have since then 200 years of wrestling with how to treat corporations given the fact individuals come together and form corporations to most of the time not all of the time to be profitable in the Business World and we give them privilege privileges to make them useful. They have some rights and most are connected to commerce and property. But they dont have all of the rights notablely and the book discusss this and corporations dont have the same rights as individuals. Not withstanding what ilya said about corporations owned and runed by individuals but they dont have the right to selfincriminating protection and see what the court recognized in those cases is that right is essentially about conscious and Human Dignity. I think the same thing is true when we talk about religious liberty. When you you know when i started this and looked back at what the framers said about religious liberty, and the generations understood it has a right rooted in freedom consciousness and dignity. If you look at madisons iconic writings in virginia he talked about reason conscious and conviction and these make little sense as applyied to secularfor profit organizations like hobby lobby who dont exercise religious consciousness to the meaningful sense of the world. Hobby lobbys owners have deeply held religious beliefs, of course. But there is a difference between the owners and the corporation. And the whole point of forming the corporation is to transform a set of individuals into a different avenue with different rights, responsibilities and ub obligations. And what i find troubling and wrong about the ruling is a lot of corporations like hobby lo