tv Key Capitol Hill Hearings CSPAN April 24, 2015 10:00pm-12:01am EDT
the court adoption band and people involved in same-sex relationships and there seems to be a lot of scrutiny of these things. there will be cases going forward where it would be nice to know what the constitutional standard is. >> where the law was defended in the indiana case by some vigorous representative of the attorney general's office, even they can see that there was no other situation where the government was involved in this individual other than marriage or that discrimination was appropriate. >> can you think of any other way where the government is allowed to discriminate against people.
>> they said they couldn't think of anything. >> if we go to a hand higher standard of review -- >> now we've reached the ultimate thing that everybody was worried about and there seems to be a lot of danger if you're going to strike down these laws. >> are they going to strike down these laws? and if so by what vote? >> i think the most likely outcome is a five to four decision with justice kennedy. i've gone back and read what they said at windsor and i'm prepared to argue that he left himself brewing in that opinion to join a majority in this case. his opinion emphasized
federalism and what the courts were not deciding in the windsor case but he said very little about what he thought the proper resolution of the state law issue was. i think there's a nontrivial chance that it could be six three where he gets on board with existing marriages without getting on board with creation of new marriages. i think those are the two most likely outcomes. also a slight possibility, but not likely, a straight up majority opinion addressing yes on the marriage recognition question. >> i actually agree. i think there's a chance of this
being a six three vote. coming out at a more practical level the chief justice i have children who are roughly the same age and we know the justices are human and part of what they're looking at is their legacy. how are their children and grandchildren going to think about them in years to come and i think that significantly increases the likelihood that the justices will join in in some way or another. not necessarily a hundred% on point. i think one of the areas we may see more of a concurrence from him is on consumer currents. he may concur that they should have access to marriage but it
should've been determined on rational law. >> it may not be a bad thing a bad thing for clarity and rigor. as long as he doesn't write it into modest of a form. >> it's gonna be 524 come on guys. he said it was okay for the federal government to overrule state decisions on marriage. he's got the states making their own decisions and it's a very difficult opinion. >> do you think there some
possibility he was thinking this was a legacy and institutional issue and he doesn't want to be on the wrong side of the issue? i said possible, but not likely. assuming all of you are correct that the vote will be 54 remember you only remember the ones you get right. indiana was in the news recently. the talk about is their position from the court are we going to see more of these or a backlash as there was an indiana particularly in states without laws protecting -- i think what we are seeing our people have long opposed any rights for lgbt
people. it's not new this is occurred for decades but what has changed is the american public opinion. in the wake of indiana's decision to pass a federal not a federal, that would be fascinating if they could pass a federal law but the act that will allow a business owner to go into court and say that they had the right to undermine existing, municipal nondiscrimination laws that prohibit the discrimination of sexual orientation in public areas to purchase services and go and shop and going claim
that their religious beliefs allow them to take hold in that law for purposes of not serving lgbt people individually or same-sex couples. there was a huge reaction to indiana's law which passed and was later revised somewhat, in large part because american attitudes have changed. 50% of the american public responded to polling questions and there were multiples that were held saying they felt that it was wrong to discriminate against same-sex couples in public accommodations even if it was wedding related.
major corporations from apple to angie's list and walmart came out in opposition to these types of laws. on the other hand some laws. on the other hand some of the laws that we are seeing are much more targeted. they're much more narrow. michigan just recently passed, and needs one more vote to go to the governor's desk, a law that would allow adoption agencies to discriminate based on religious beliefs. alabama one vote away from passing a nearly identical away. the state of louisiana is considering legislation that would allow government pastors to discriminate on the basis of marriage if they did not believe in that marriage. if that marriage violated their religious beliefs. so if you have a judge that doesn't think that a same-sex marriage is legitimate then
they can claim divorce. there's nothing the state could do to sanction that. that doesn't mean they won't be in operation for a number of years or that they will pass. >> there is a case last fall out of new mexico. >> yes, the owner of a photography business was approached by a same-sex couple people and this was before they had marriage equality and they wanted to have a quick a commitment ceremony. they said they would like you to take pictures of the commitment ceremony and the owner said well i disapprove of your relationship. it doesn't align with my views on marriage and family even though they have very clear laws
about discrimination on sexual orientation, i don't think i have to serve you. they found in favor of the same-sex couple. they said to the photographer you are bound by non- description discrimination law and you are flat-out discriminating on the basis of sexual orientation. the supreme court had the opportunity to take that case up and they declined to do so. i don't think you can read too much into that -- they did. i think there was a real interest in how courts are going to come out on these issues. to date there have not been that many supreme court to deal with the issue.
we don't have federal laws protecting same-sex couples from discrimination in public accommodations. it. >> it was not a religious case at all, it was about her art and that she didn't want to create that art to make her wedding beautiful. the idea that you are complicit in someone else's marriage by selling them a product like a cake or flowers i don't think religion is sufficient to justify exemption. i do think we will continue to see these issues asserted. like the ones in alabama who made these claims but the fact that the community feel so
strongly against this suggests that religion for an anti- gay opposition is not as powerful as people thought it was. >> this has been the drumbeat among social conservatives. this is the argument against same-sex marriage that it interferes with religious beliefs. >> i also want to push back against the idea about small businesses. a large number of small businesses believe that the same behavior is inappropriate and
there's been many business owners who have come out and said as a catholic, as a protestant, as a jew, i may not believe that same-sex couples should be getting married but when i am opening my business up to the general public i understand my obligations are different in the public marketplace then my own personal views. >> one of those might be worth reading. there is a very prominent scholar on religion and litigation and he filed a brief in favor of same-sex marriage and supported his petitioner's to discuss ways to live up to the discussions of same-sex marriage and civil liberties. i think some of them have gotten the majority to say something about this. he spoke respectfully of people who have traditional views about marriage and empathetically who
wanted to get married. they're making a play for something in the opinion that might give a nod to the idea that there are issues down the road that may need to be resolved even if the court grants same-sex marriage. >> absolutely look already all of the major republican candidates for president have made this an issue in their campaign. he wrote an article in the new york time in which he plays out this vision of opposition for marriage equality.
it really suggests that individuals should be willing to oppose even if the supreme court rules and favor. they are all trying to attract a small subset of the american people. those primary voters who are extremely social conservative and they are going to have significant challenges if they continue on this path when they end up in the general election. if you look at americans under the age of 40 75% support marriage equality. even if you look at republicans under the age of 30 61% support marriage equality. they're setting themselves up for potential success amongst their core base but will have problems in the general
election. >> they're using this in the primary elections but when you look to the general election they don't want to be talking about this. they want the supreme court to handle it and take it off the table so it's not up to the president to make this decision. they really don't want to have this issue be a lot alive issue. they can downplay discussing it later. mitt romney keeps getting asked this question. >> we know americans have access to view it.
it'll be one of those, what i like to have a beer with this person kind of question. essentially it has nothing to do with same-sex marriage in this country but will be a character issue that people measure presidential candidates by. today by. today believe in fairness and respect and do they respect my gay son or my gay nephew. >> let's move onto the next set of questions. do support nondiscrimination issues across the country because that issue is still out there. >> i think were going to have to continue to talk about marriage because of state legislature needs to introduce bills that are an attempt to limit the
scope of marriage equality within the state and carve out for individuals who don't want to interact with same-sex couples who are marrying. i think there's going to be many opportunities for them to determine how they feel about same-sex relationships. >> i wonder whether or not transgender issues are going to come up. after marriages decided i think another set of issues waiting in the wings is chan trans gender inequality. it'll be interesting to see whether or not those issues have enough momentum to get discussed. >> there are cases alleging that discrimination on the basis of gender identity is another set of sexual discrimination.
they have determined for federal employment jenner identity discrimination is discrimination. now they are trying to look at private employees. as these issues progress there's going to be opportunity to go on record about these issues. >> okay it is now time for your questions. i just want to throw out the possibility of a seven to decision. i know he's a very conservative justice but he's joining them minority of the court.
is that some sort of evolution on this issue? >> it doesn't mean he voted for the decision to deny it. i think it's unclear what the actual vote was in alabama. >> it was unclear. >> if you look at his opinion it's not ambiguous in any way. >> it still important to note when you are determining whether or not you vote, part of what they're determining is the likelihood success. he might make an assessment about where they think they are going to land but he may not
agree with that decision. >> he's very strategic in his thinking in advance and i have to agree with that. there was an article across my desk of someone saying the dissent in windsor could have been a dissent in the other case in virginia. there was no difference in the arguments he made about gay marriage. >> what if you're not wrong and it's a five for decision the other way. what would happen? all of the states that obtain marriage equality through a state legislative process a state supreme court decision or
the ballot box will retain the ability to issue marriage licenses for same-sex couples. it gets more complicated for states who have had a federal ruling they have to go back to the district court and say we want to start enforcing our ban on same-sex couples being able to marry. then it begins to be a bit of a gamble. i think we can presume that at least four of them will seek that right. there are significant -- if
same-sex couples who were legally able to marry can they remain married? >> the federal decision to block that is very questionable. they may stop marrying people at least for a wild. that will send it back to the political scene for some amount of time. it would be anxiety provoking to those thousands of gay couples who don't know if they will continue to have their constitutional rights. it can be a very painful experience for many people in the country.
>> many conservatives seem to believe that if the supreme court allows gay marriage nationwide it could somehow league to polygamy and people being allowed to marry their siblings. one could make a legal argument that that could happen. >> i think the slippery slope arguments are a dangerous trick but there the recourse of people who don't want to go through the difficult process of reasoning and distinguishing and everything that lawyers are trained to do. you begin with the principles that the court says there's a fundamental right to marry. here is a group that is claiming exclusion from that right. what are the harms, what are
legitimate reasons and justify those reasons. it's a completely different set of potential harms rules, state interests involved in polygamist marriages and relationships and incestuous relationships. they will have two identify what their good reasons are for banning those marriages. there's consequences for children and women and i think you can come up with a whole range of reasons why it would be more permissible from the issue of social harm and legitimate social interests to allow same-sex marriage. the mac.
>> that question will get asked. i don't think it's plausible to say you can't draw a constitutional line between the two. >> has windsor had any effect on the last two years? >> he certainly brought a beautiful opinion for his colleagues to be able to say here you go. >> windsor means this but marriage equality has decided -- and whether or not it made it difference or they would've figured it out by reading the majority --
>> this has been a very interesting briefing. as someone who comes from this from the outside you can see that this is not going to the supreme court but perhaps it'll go to this justice or perhaps his grandkids if he wants to leave a legacy. what would be the one or two arguments you would bring aiming first of all at kennedy and a few step back and look at this
and you know the supreme court is a giant body is this really a functional body that we have? >> that's a lot of questions. i think first and for now most if you are going in and talking to society and to some extent even roberts, he made it clear that he cares a lot about the children. this was a primary issue for him and he clearly wanted to grapple with why should the children of same-sex couples not have all of the same benefits and protection of the children of opposite couples.
why is it that in a state that a state that is not issuing marriage licenses to same-sex couples and therefore ensuring that those couples have state and federal rights, why should those children be subjected to lesser protection than other children. in terms of the second question, could you repeat part of that again? speemac. >> i think it's too simplistic to say that the courts come down to in this clear political way. we know there are many justices over the year who are put in place by a republican or a democrat with the expectation that they will vote on party lines :
the dignity conferred by the states that chose to marry the. for the chief the emphasize that it is rational basis the lowest requirement of justification. able petitioners, i don't know maybe you explain why this is not a threat to religious liberty something very concerning, civil marriage to a relatively limited locations were culture and religious institutions. that would be one guess anyway. >> the flip side of the question. if you are representing ohio, michigan, if you will the most convincing arguments that you make to
justice kennedy and others to say week of states should have have the right to ban same-sex marriage? >> as the was just saying you talk about states. able to have their own policies particularly in this area. and then perfectly popular vote, something that is respective even more than legislative clause. >> the progressive recognition question. >> again, i think they we will advocate for it. it seems with justice kennedy, we won't have a heavy hand of the federal constitution imposing something that not all states are ready for licensing same-sex marriage
but we will say that a sensible, horizontal a sensible, horizontal federalism, the only thing that can sensibly work in a country like ours, states that have chosen to marry gay couples, a lot of the logic from the decision on windsor. another sovereign cannot respect with one state has chosen and its people sovereignty to create. again, will if the price of saying yes on that question as to say no i think it would be very english. have a sense that he is concerned about his role in history. and so a vision for what his lasting contribution will be >> the whole idea that you were shielding the states you don't have to do the marriages, you just have to respect the that county
clerks, the county clerks, justices of the piece, the have to do that. every other department of state justice. [inaudible conversations] >> kennedy again used the marriage license as having significance and what is creating the marriage, the dignity, the equality of the entitlements. he he attaches a lot of significance in that particular state action even as a practical matter. >> the idea that there are two kinds of marriages and one had to go out of state and find the hotel and other people don't. >> very sensitive. >> but he is not overly concerned. thinking about the
substantial burden on women and abortion. there he does not seem to have difficulty. >> part of the problem is he does not fully believe. what he does clearly believe couples who have been married should have the recognition of marriage. >> trying to channel what might be going on in his life. >> the legal director. pretty sure have contractually obligated. >> it is a declaration and recognition. >> very hard to write a decision. the arguments come down to the same state interest of the same constitutional provisions. i just don't see it.
intermediate scrutiny. >> i don't consider myself enough of an expert on the entire body of justice kennedy's jurisprudence to no whether he has a aversion to scrutiny. the way he has resolve these cases is not feel any aversion to comply with the conventions of a. scrutiny. there seems to be addressed on the court away from the idea that tiered scrutiny is necessary and applying a tailored form of scrutiny to the particular situation. some of the courts have done that to process liberty issues. the court has had cases well, anyway the general drift of the court has moved
beyond tiered scrutiny. it seems that justice kennedy is very comfortable. >> interesting. first amendment jurisprudence the strongest supporter of categorical thinking in those cases. different than commercial scrutiny and restrictions. cases were watered down. so it is a curiosity. >> please join me in a round of applause. [applause] >> next, the supreme court oral argument.
>> we will here argument this morning on horne v. agriculture department. >> mr. chief justice and may it please the court court, thank you for being willing to hear this case for a 2nd time. this is an administrative enforcement proceeding brought by the department of agriculture against my clients commending the relinquishment of funds connected to specific abuses of property, namely preserve tenant reasons. my clients appear in their capacity as handlers but the particular facts of this case economic consensus are somewhat different than are ordinarily true in this industry because as handlers the horne couple assumed the
full financial responsibility for the raisins that were not turned over to the department of agriculture. the the producers in this case were fully paid for their raisins. this is a this is a factual finding to be found in the judicial officers opinion 66 a in the appendix to the petition. they pay the producers for their raisins. according to the judicial officer those raisins became part of the judicial inventory. the rac came after the raisins. it was the horne couple and the horne couple only who bore the financial burden. >> paid only for the volume that was permitted and not paid for the reserve.
>> justice teeeight, that ginsburg, that is true in the ordinary court but not in this particular case because of the unusual business model. >> and are you objecting to the volume limitation, or is it just that reserve pool that you find -- >> we believe a volume limitation would be a use restriction and might possibly be challenged will under the consensual test but would not be a per se taking. in this case rac actually takes possession, ownership of the raisins that aspect of the case we are challenging. >> that is puzzling because if you are not challenging the volume itself you can
sell more than 60 percent of your crop. >> that's correct. >> what happens to the rest of it? you are not going to build a feed your family on -- >> in an ordinary case the reserve percentage which in one case is 37 percent 30 percent in the other case 47 percent it's handed over to the reason administrative committee. >> if we just had a volume you cannot sell more than x amount. i take it that they would get nothing at all, at least with this reserve pool there is the possibility of getting some money. >> it all depends. so a volume control generally works is that the owner of the produce is permitted. they have to hold back a a
certain amount and are permitted to sell the reserve is the market conditions continue. in this case they sold the raisins. there was a market so i would assume volume controls under these economic conditions might last these -- might leave these particular people better off >> the administrative expenses? i still do not understand. the per se. you have given up. >> we have never claimed there was a consensual. >> basically, you see annexes between the regulation and its purpose? >> we do, but more fundamentally this is an actual transfer of the raisins themselves to the government.
>> how is this different than leonard? >> leonard involved oyster shells which are owned by the state called wild animals, the property of the state. the oyster men have no property interest in them other than what the state chose to license them to harvest. >> is that really true mr. mcconnell? when these fishermen took the oysters toy including the shells from the bay or other waters they could then sell the oysters. why were the shelves not theirs at that.? >> whatever property interest the state of maryland provided for them and the state of maryland with help the 10 percent of the show for the purpose of essentially fertilizing. >> i guess i would have thought as soon as they bring the oysters out of the bay and hold their catch to shore that what they have halted short is then there's
>> except for the 10 percent of the state reserves. >> i guess what justice sotomayor question is is why wouldn't the same be true for raisins? >> raisins are not wild animals, even if they are dancing. [laughter] and they did not originally belonged to the federal government. >> you think that leonard is an animal's case as opposed to let you know the state contact your property case? >> yes, i do. >> call it the tax. >> they did also call it attacks. i am happy to address whether this is attacks because under this court's standards for criteria for determining attacks this certainly is not one referring to the criteria. this is not in the internal revenue code not collected
by the internal revenue service new tax laws by congress. the proceeds to not go to the general treasury. >> but it did not go their way and leonard either. the court was basically saying that the government could do this. it is commerce. as far as it can meet the test, there is some nexus between the government goal and the regulation command it is okay. there they use it to fertilize oyster were to be fertilize the oysters. here they are doing it to maintain prices and giving you whatever is left over on the reserve. >> the fact of the matter is the oysters belong to the state of maryland and when the state of maryland decides to allow fishermen --
>> where and leonard was this discussed? >> am happy to file a supplemental brief with the maryland citations indicating the oysters belong to the city maryland. >> i thought that was the constitution required for taking was just compensation not a reasonable nexus to a good policy. >> you are not wrong about that. i suppose -- what we can ask them the position or you can characterize it if you choose. >> what differences that make. and you understand that to be the underlying premise in the argument. is that unfair? >> they certainly say that from time to time.
this court two years ago rejected arguments of that sort but in fact there is a fundamental difference between a volume control which is present for a number of agricultural products versus the taking. in this case the government literally takes possession of the raisins. it can use the raisins as collateral to get a loan giveaway. >> listen, this reserve arrangement the possession the governments possession of the raisins themselves. as far as i have heard so far you are not attacking. why did you not been asked the department of agriculture for an exemption from the reserve pool? instead of what you are trying to do now get rid of
the volume limit as well? >> in this particular part there is no separate volume control in the sense that there is no regulation that tells you the producers or handlers how to use or so raisins. instead they are told to set them aside and give them to the government. >> but suppose we just -- can you have asked to excise that in the amount that can be marketed. a division between marketed. a division between what goes in the desert -- into the reserve. >> justice ginsburg the way this arose is the department of agriculture came after my client. this is not my lawsuit. >> a counterclaim? >> it is a defense.
a department says give us raisins or the monetary equivalent command we say that is not constitutional. >> would there be any obligation on your part to propose an alternative? the government comes and takes your property. can you resist without saying, zero, you can do this in another way. >> we do not, not, and i am not sure any alternative ways would be permitted. >> it goes on from this. maybe the answer but for arguments sake, some raisins in my basement. the government comes with a soul and some burlap sacks and takes the raisins. well, sounds like taking to me. the constitution does not forbid that. you have to pay just
compensation. i want to know what happens. i guess that the government could argue look at this program. it is big. what it does is gives raisin farmers more money. if you do not want us to take your raisins, fine but there will be no program if everyone said that. we have a rule against free riders. it will give you what it cost you to take your raisins in fact, the difference between what you received given the program and what you would receive without the program. that works in your favor. it gives it gives you money. it does not take money. so there is no compensation do. how do you get by that? if you can't how will you avoid paying the fine?
i do not see the relation between the taking argument and how it eventually you either get money or don't have to pay the fine. if you have a minute i would appreciate an explanation. >> i would love to. conceptual and practical response. let me get the practical response 1st. my clients are not better off. price of raisins and $63 per ton higher with the volume controls than it would have been in an unregulated market. the fuel price that year was $810 per ton for taking away 30 percent of their raisins does not end up with my clients better off as a result. quite the contrary. they lose money. we have the calculation.
>> you are going to get to the theoretical argument. the response. well, the price you just quoted is because of this program. >> by the secretaries on calculations $63 of that 810 is attributable to the volume controls. only $63. >> told that the demand for raisins is inelastic. you are going to have what happens before. you are going to have prices dropping. it fits the purpose of free competition. >> hundred today's conditions it is not as enormous as it would need to be. >> well, there is no
reserved. >> what i said today -- >> one of your arguments. [inaudible conversations] the conceptual.is this is a per se taking. that would at most go to whether there was implicit in-kind compensation which would go to the question of compensation. implicit in-kind compensation is a a complicated matter having to do with whether there were special benefits from the split all over the country. i i don't think we want to get into whether this would be a special benefit. >> in the objection to my writing if i were to write it like this? >> no. >> okay. the object of the program is to give farmers more
compensation than they would have without it. sometimes it is counterproductive, but if it is working well, that is what happens. we send it back to the court did it did it work to make your client better off and what roles do you follow. >> i think not. i am close. if this were an eminent domain proceeding the lower court will determine whether there was implicit in-kind compensation proceeding but this is an enforcement action specifically guided by the regulations in the seven cfr and other those regulations we no exactly what takes place. implicit in-kind contribution is not provided for. what is is that the -- if
reserve raisins are not handed over to the rac the handler must multiply the number of raisins by the field price, and that is it. there is also the measure of the value of the raisins so that if they take that the compensation is exactly that and the two things simply are a wash. the broader principle is that this is not a program designed to provide compensation. the government almost concedes this. this is not like getting land for a post office where the government intends to pay. this is more like kaiser at night, or others were if it is the taking the government has no intention of paying a compensation. and in cases where there is
a taking in the program does not contemplate compensation, the standard judicial remedy is to forbid the taking. [inaudible conversations] >> take you back to whether it is a taking. i have been trying to think about whether your argument would apply to other kinds of programs and how it might apply. so how about just programs where the government says give us -- produce records for us. i am sure there are programs like that in the world. something intuitive. i am wondering. seems to me the government asks people to turn stuff over all the time in the form of records. how would that fair under your argument? >> if what the government is
asking for this information this is not going to be a taking. if the records themselves are of historical value. [inaudible conversations] >> historical value, they are just physical objects in the same way that raisins are. the government wants -- >> the government does not take permanent possession of records. as shown in the records, they see the information. >> you are saying the government cannot ask you to deliver records to them? >> i did not say that. they can ask me to do that and it is not a taking unless they take permanent possessory interest. if they go off and sell the record -- [inaudible conversations] >> they are keeping the records.
>> if they are keeping the records forever i am not sure, but i doubt very much it would be a taking. the value of the records is the information which is what i assume it is in the regulatory program. we're not talking about actual physical -- >> there are cases where the government all the time in criminal cases takes control of valuable objects for evidence and sometimes keeps it forever and ever and in some cases there is a taking. a taking. i think we and other courts have said that. [inaudible conversations] >> only so long as is reasonably for so long as the case. complicated sets of rules having to do with contraband and property used as an instrumentality of a crime. but but this is extremely
far afield from raisins, which are a valuable piece of property. [inaudible conversations] >> i'm trying to understand why it is far afield and what it is far afield from. if the government says, you have to give us that information why is that not subject your rule? >> information can be property intellectual property for example, trade secrets. i do not think ordinary records such as the irs demands from taxpayers is a taking. >> well, we set the turning over of trade secrets, which is property for the privilege of selling commodities pesticides was okay.
it was not a taking. >> there is broad language in that case which this court court cut back upon in nolan versus california coastal commission. the court held that monsanto could not stand for the proposition that is an affirmative benefit to someone simply to allow them to use the property in an ordinary sense. there has to be an actual affirmative government grant of a benefit. >> getting $63 more a pound for what you sell seems like a significant benefit. >> $63 results from volume controls. that does not require a taking. the taking itself is of absolutely no value to the producers or anyone else other than those who received export subsidies from the sale of the raisins
they are the only ones the benefit. >> but you could not do it. except for that but you could eat at home but you did not intend to eat at home. if they gave you the raisins, would you be able to export them and get the government subsidy? >> if they -- my clients are not in the export business. if my clients were selling raisins for export they would be entitled to receive the export subsidy but that is not the business they are in. >> you could not otherwise sell this commodity. if all they did was put it in the house and say to the producers sell 60 percent this year what would you do with the raisins? >> the way other programs
work is, there is an initial reserve and as market conditions develop -- market conditions develop and more information is available the owners are permitted to release more and more into the market. >> the other way. >> that would be -- that would certainly be a different case. if it was completely the other way it could well be that the owners of the raisins received no money and all. but it still is a restriction on their use. the raisins and not been taken from them. in this case the raisins are taking from them one of these use the government was able to sell the raisins for more than the field price. >> were thinking. acrylic kelly case.
imaginary plan. i'll figure it out myself. [laughter] >> no further questions, i will reserve the remainder of my time for a bottle. >> thank you, counsel. >> mr. chief justice, and may it please the court competitions isolate one future of the comprehensive program regulating the commercial marketing of the product, regulatory program established with producer approval and for their benefit from a cooperative program among the group. it is group. is not put into the program for the benefit of the but for the benefit of producers and into the stream of commerce. the producers affected.
>> they wanted this. >> these petitioners do not want the program, but it was established on the premise. >> it is one feature of an overall program which happens to be the taking of raisins. you can have a lot of features no objection but where one is a taking, you have to justify it by just compensation. >> the question is whether it is a taking. >> we used to say it is not if it involves personal property. only real estate. >> that has not been our position. we have not argued personal property is not subject to just compensation such that if the government came in and took someone's car -- well, the government has not if i could set this up and
explain how it operates, this program operates only when the producer, grover has voluntarily committed the raisins to the stream of commerce, been put into the stream of commerce, turned over to the handler. >> the government can prevent you from putting something into the stream of commerce, charge you for putting something in. >> the government can attach reasonable conditions. >> including taking. >> that's, i think, is the lesson of monsanto. >> a constitutional condition. an unconstitutional condition for putting something into the stream of commerce. >> that analysis would apply [inaudible conversations] 's --
>> are there any limits to that? >> i think that i think that would present a very different question. >> why would it be different? >> this is part of a comprehensive regulatory program. [inaudible conversations] >> the government took all the cars that it will be okay. >> we are not saying that at all. just before you do the rationale for the government can come up with a rationale to justify those examples easily. cell phone providers benefit greatly. we will take every 5th one and give it to people who might otherwise not be able to afford and that will help manufacturers.
therefore it therefore it is okay. that is the same rationale for applying here. >> these programs go back to the 1930s when the agricultural industry in this country was in serious trouble particularly in california. you can do what you have done in most other which is not take the raisins and say, say you can only play at 63 percent of your acreage this year or produce 28 tons. that is how most work. and this is different because you come up and get the shovels and take the raisins were probably in the dark of the night. >> that is not what the government does. the way the order operates is that the producer submits the raisins to the handler.
the handler divides them into two categories. the handler is required by the order to maintain and separate the reserve raisins , but they are separated from later sale. they do not currently government. they are separated from later sale. >> what do you mean, i don't -- does not the government on them? >> for the purposes of this case we can see the government gives leo title but that does not mean the government has the entire interest in the raisins. the government has legal title so that it may we will assume for purposes of this case so that committee, not the sec. of agriculture, the, the community can sell the raisins and the proceeds are pulled and distribute back to the producers. >> how much do these petitioners acquire in the two years at issue? how much money was given
back? >> in one year $272 per ton. and the other year there were no proceeds back. the cost of administering the reserve program exceeded. there was no that proceed afterward. >> the history of the program, 1939. >> yes. >> how many years will the program was in effect? and distribution? >> i do not know. a great number of years. three years moving up to this particular time one of the year's year 47 million was returned. the prior year, 57 million. the experience is that there has typically been -- >> i too am troubled by
justice alito about his prefix. you have answered that question. what is the basis. >> because this is a comprehensive government to program and that governs quality. governs timing of sales and it is important to recognize that that is all it is going on. the reserve raisins are set aside or set aside by the handler after the producer has voluntarily turned them over for later sale. petitioners concede that the government can regulate the manner of sales which is exactly what the reserve program does. they decide when and where to sell the.
>> this is a historical work you could achieve the government objective just as you do in most other cases through volume limitations that do not require physical taking. this was set up differently. we are here dealing with the classical physical taking. we're not going to jeopardize the marketing. and the better view you said earlier it is the reason or you will have a lot of trouble. make the.that these committees are government. >> we are not saying the committee is not the government. the operation of the program is not for the governments benefit. >> correct. >> i am having trouble with the same thing. i agree so far with what the chief justice said. you can, in fact and
raisins, the.of which was to have fewer the result of which was to raise the price from $100 per pound bushel to 400. never start to make the farmer better off which it did in many customers were soft. someone had someone had a good idea and said it is wasteful to burn raisins let's take them and give them schoolchildren. maybe we could even sell a few. if we do we will get that extra money to the farmer. now we have schoolchildren with raisins, the farmer having more money. sounds like a good program. of course, you have taken raisins. what i do not see is how either the farmer or schoolchildren are any the worse off, and if they are not worse off what compensation are these farmers entitled to. of course the riders to
become get better off but after all that is not the issue because you have to have no free riders. once you admit that as a rule everyone a better off. that is a simple argument what what i understand to be the economics of the brandon plan, fdr, 1949 etc. come commended we have had endless cases, complexities opinions fines. i am probably wrong with my simple argument. i doubt i doubt that i am, but i want you to explain what is wrong. >> we agree with much of what you said. it is not a taking. >> you want to say it is not a taking. >> it is regulatory program
classically analyzed because there is a reciprocity of advantage among producers. this does not distinctly affect the petitioners. since 1949 every year there has been a reserve requirement and every producer has had a per se taking. >> i largely agree with what the chief justice said. it is it is the way i think about this program. this seems a weird historical anomaly. am i right that all the rest of these and cultural programs are done differently such that saying that this was a taking would not affect other agricultural programs? also, are there any other programs out there forget agricultural programs but in the programs we should be concerned about if we were to think about this as a taking?
>> with respect to agricultural programs there are eight or ten other programs that have reserve provisions. most are not active in the sense that there is currently reserve, just like this one is not. if this one has outlived its usefulness the program is working exactly like it should. the committee has decided not to impose a reserve requirement. >> i'm sorry, you said that -- >> like this one provisions permitting the use of a reserve system that are not actively being utilized. >> not actively utilized. >> most of this has been in the last decade. one of the things that has happened in this industry is it has changed greatly. you will see from the amicus brief filed they now
believe that the reserve requirement should no longer be instituted, but they instituted, but they also firmly believe that petitioners should not be permitted to the free riders >> and what nonagricultural programs? other programs in the for the government says produced something that is characterized as property? >> immediately relevant to this court sustained in the monsanto case we were asking about records and information. as information. as a condition for marketing pesticides the manufacturer had to submit information tpa. >> we know about that one. anything else out there? tell me about the realm of regulatory programs. we. we ought to be concerned if we were to say something like the production of stuff that somebody claims a
property interest in. >> not specifically aware of other programs. the requirements to submit information to the government is widespread. with the court basically said was if it was known when someone before they entered congress and the planner application come if they knew the material would be disclosed to the public or used by the government's. [inaudible conversations] and the the government can prohibit the introduction of harmful pesticides into interstate commerce. i am not sure it can prohibit the introduction of reasons. dangerous raisins, i can understand imposing that condition. and that would not be unconstitutional. >> it is when you impose it on raisins. >> the court's rationale was not based upon the fact that it -- that the product was
dangerous. it was the fact that the manufacturing when submitting information that it would be subject to disclosure and therefore property value other eliminated are appropriated by the government as it were >> but what you take from monsanto and looking at your brief you say that producers who are dissatisfied with the regulations may plan different crops. that is an audacious statement. >> the overwhelming majority have a variety of uses one of the things that would be
taken into account. >> if you don't like regulations you can challenge them in court. the answer is always you can do something else. never have these kinds of cases. >> this is a subsequent.i am making. it's market regulation. people who are growing crops in this industry now with the regulation is, and if they had operated under this market for 30 years. [inaudible conversations] >> it seems to me, even if it is a taking, it is okay. everything will work out. >> or fundamental argument it is it is not a taking to begin with because the grower voluntarily submits the total amount of raises to the handler. the handler then separates
them into quarters, want to be sold now and want to be sold later but they both have to do with the timing and regulation of sale. that that is exactly what happened. basically to markets, the free market, the tightly regulated market for exports >> so the pledge of allegiance in public schools and make everyone stands stand and if you don't like it goes with different school. i don't understand why it is not the same analysis here. if you don't like it >> it is not the only case. i do not believe they back on the rationale. we do not regard the ability to build on your property, real property to build a house as a governmental benefit. it did not say in fact i think it reaffirmed the idea
that there was an exchange with the government was given the benefit of clearing the product for use >> were as you say it is a government benefit. >> the regulatory program is a governmental benefit. >> you are saying the activity which is subjected to this taking is the introduction of raisins command you said that is something that the benign government can give or withhold. >> it is the permission to do it. the same thing with respect to real property. it was claimed a taking because the mobile park owner was subject to rent control and it was argued that that was like loretto. the critical distinction was
that they had voluntarily chosen to enter the rental market, a commercial transaction and the government can then regulate the price being charged. >> mr. mcconnell was asked a number of questions about the letter case but i but i take it that you think that case has important bearing because you say one time in your brief a passing reference on the issue of tangible goods. >> we think it is a critical issue. >> you did not suggest to us that this case is another version of leonard and therefore we should affirm based on the. >> to the extent leonard was about tax. this program was not identified as attacks probably because the raises don't come to the government
they go to a pool applies to all of the producers and is then divided up, not appropriated for government use. leonard is critically instructive with respect to property like this, was to shows are like raisins. they are only valuable for commercial sale, sale, not like the ownership of real property which is unique and personally identified. these are valuable only for sale. this order kicks in only when the producer has committed the raisins to sell. >> put all the regulatory aspects aside and just say this were a much simpler program that said the government said to the raised industry, we could tax you and say you have to deliver 2 percent of net profit.
we're not going we're not going to do that. he will take 2 percent. with that because it is? >> that would be like leonard. i do not think there is anything that would prohibit the fact that that would be okay is instructive as the court's discussion of whether it suggests. >> you said you don't think of this case in that way. >> it is an analogous in the sense that congress may well be in to do this in a different way. the oysters -- the raisins excuse me, not being used for government programs. >> we do not usually committees of producers to impose taxes. this is done by subcommittee
>> right, but a committee elected by producers. >> they can impose taxes. >> what i was saying was the government may well be able to impose something some exaction as attacks, this is regulatory program adopted by producers. this court has had numerous cases involving marketing orders. >> whatever the majority agreed to the have to be bound by? >> the disagreement is not converted into a taking. >> am not saying that the disagreement conference it into taking it does not carry much more to say that this is a program adopted by producers. a. a 51 percent want to do it there 49 that don't. >> i think it's a good indication that the premise on which congress enacted this statute operated in an
upright now for the benefit of producers and it should be necessary in any one particular year to calibrate whether the benefits outweigh the burden. >> central planning. to planning. to work very well in 1937 command russia trade for a long time. >> again, if this program is not working it can be modified in the committee comprised of producers has decided not to impose preserve. >> you made the.several times. ..
>> explain why this has been -- the market for raisins, that is basically correct. >> it is just a quality of raisins that is a limited set of outlets that are primarily used as ingredients in raisin bran and things like that. and if you put a great surplus on this market, this has a very sensible approach. >> you could think of this that this is a ridiculous program. isn't that right reign.
>> yes you could think of this is a logistical program, it's been around since 1949 every grower since 1949 has had this. >> your case is ridiculous, you have to acknowledge that. [laughter] >> let me be clear. >> this was a serious point because this sensible myth is really not for us to decide. >> i agree with that completely. this is a regulatory program that should be part of this. >> we have a reserve in this way. have any others been operative as this one has been?
>> most of them are not operative in the sense of the reserve that this is my understanding that this has been triggered. >> i think that it's true of perhaps several others but i'm not sure. some of them had to do with the handler and i wanted to correct on that just a little bit. correcting this factual error and from the one year there was $810 that was the field price because of the mathematical calculations, this would've been better off without the reserve. the mistake there is the assumption that if they were all put on the market and that is just inconsistent. the only reason is that the other ones are taken off the market and they would not have been recovered in that way. >> how many programs are there
in a marketing orders? >> i mean i'm trying to put this in relation. >> i don't know the total number. but we can follow that up with a supplemental letter. and this is not fundamentally different from the others. and again, the government is not acquiring this, the government doesn't actually keep them in this procession, it tells him to keep them later rather than selling the now and that is not part of private property. >> okay, thank you, counsel. you have five minutes remaining. >> enqueue, mr. chief justice. simmer things have been cleared up, the government concedes that the government takes legal title and the government does -- >> to the extent that we issued,
meaningful with respect to the actual benefit. it's not for their benefit but for the benefit of the beneficiary. >> that is true, justice, but the government is not a trust be there. [inaudible] >> it's at the best price it can get given the limitations. >> it uses the proceeds for its own regulatory purposes. >> you have only four minutes. >> just as to the factual points it's not our calculations. our calculations are not based upon all of these, they are based upon being able to sell
all of the raisins at the price that the secretary has said would be the price in an unregulated market which is $747. that is certainly not true that these reserve the raisins are valueless. i think that they have been an extremely valuable commodity and most of the years, the producers of the reasons that we have been, we certainly have nothing for them. but the important point is that it is not less any of the taking even if there is a benefit. i have no doubt that the value of the apartment went out because it became cable ready for its tenets and that do not make it any less as this is a taking and any benefits only go to whether there might be some kind of implicit compensation as a result of the benefit and that
might as well be relevant. this is only an administrative enforcement action in which the question is whether the department of agriculture is entitled under the constitution to demand this or the monetary equivalent of compensation. >> why are we making that argument? >> you know, if he would look at -- >> i mean what is the regulation. >> it's the regulation. >> i'm sorry, if you look at 7cfr989166c, that is the provision for what happens when the handler does not turn over reserve raisins to the department of agriculture. it is a soup very specific
provision for what happens and there's no provision in that for implicit compensation. >> including you but no free riders, that is what is compensation. can they see that fact? >> under this i do not think it is open to the department of agriculture if this were an imminent domain proceeding we were simply trying to figure out what the proper value was of the raisins and what it is. preserving the point that we believe that this program does not benefit the producers. we believe that the program actually makes the producers demonstrably worse off. and the only people that benefit are the recipients of the subsidies. >> i will take you back to the
first thing that you said. typically you said that the handler doesn't take the product. the handler doesn't pay for the product. and assuming that they do have this for the raisins that they produce and not for the raisins that other people produce. did you say that that is not correct in this case? >> no, it is not. because the check went out from the raisins marketing association for every raisin not just the free tonnage but the reserve tonnage as well. so it's the only people with a financial interest for it in this case. it's very unusual. >> what has the impact of the drought then? >> it is not good. [laughter]
>> it is very carefully guarded. >> i wonder if i will be able to take a shower when i go home. >> thank you counsel. >> coming up next a preview of the oral arguments in a case scheduled for tuesday, after that one versus the u.s. department of agriculture. >> this weekend hearing from authors such as former attorney general and the new york attorney general and live coverage at st. gaithersburg but
festival. check us out at book expo america. then in the first week in june we are live at the "chicago tribune" printers row lets live test. including our in depth program went lawrence wright and your phone calls. that is the this spring on booktv. >> on tuesday the supreme court will hear oral argument on whether the 14th amendment requires states to license marriages between two people of the same saxon weathers dates are required to recognize same-sex marriage. people are lining up to hear tuesday's oral arguments. there is a discussion about the upcoming cases and their positions on cases. this is about one hour and 10
minutes. [inaudible conversations] [inaudible conversations] [inaudible conversations] >> hello, we are grateful to the folks at c-span coming in who are filming the discussion today and we want to be conscious of their presence here. my name is rick scarborough and myself and others who are here, matthew staver and mr. jackson
are the original authors, there are copies you can see one if you'd like. you can read the pledge and see the key signers and over 6000 have signed the pledge. all of that will be discussed in the course of the presentations today. we had to members that could not be here because of one case that we had and they both submitted a copy of their position and that includes mr. jackson. [inaudible] >> another by the president of the caucus for american
[inaudible] [inaudible] >> let me say that again into the microphone for those that are watching. we are passing out to handouts, one by mr. jackson who is in europe today who wanted to give you his perspective on this, he is a tremendous black american leader. pastor of the local church in the dc area and a champion for the cause of christ. and then also we have a handout going out by rabbi rj spiro. he is president of the american caucus and here is part of the remarks as well the first presenter will be doctor james dobson who made a five minute video presentation and we want to show that to frame the debate today. then i will be the first visible
visionary. >> i appreciate your attending the press conference. i'm unable to be there myself, but my colleagues have asked me to address you briefly by way of this video. >> we have some decision that the supreme court will render regarding the definition or redefinition of marriage. and the institution of the family is one of the creators most marvelous and enduring jerks to human kind. it has been honored with law and custom for more than 5000 years and this has been built upon it. and it has been the bedrock of culture and asia.
>> including the biblical cities of sodom and gomorrah and during the roman empire in ancient greece. none of these civilizations survived. only in the last few years has gay marriage then given equal status with biblical male and female unions. in fact only 18 countries in the world recognize same-sex marriage. america appears to be on the verge now of the number 19. god help us if we throw the divine plan for humankindon the ashes of history. marriage represents the very
foundation of human social order and everything of value sits on that base. institutions government prosperity, all of them depend upon the stability. when it has been weakened or undermined, we see the superstructure began to wobble and that is exactly what has happened during the last 45 years. the american people did not demand this that is occurring. in fact, the population in 31 states voted one at a time on the definition of marriage and everyone affirmed it as being exclusively between one man and woman. those proclamations were in their state constitutions. many of those popular elections
are being overridden by federal judges who are changing the course of history. and in may 2013 only 13 states have legalized same-sex marriage. two years later the supreme court seems poised to make it 50. so whatever happened to abraham lincoln's pronouncement that ours is a government of the people, by the people, and for the people. we make the decisions for ourselves and it's rapidly being replaced by a government of the courts, by the court, and for the court. let me get to the bottom line. if the u.s. supreme court redefines marriage to include same-sex marriage you and i
know that this will not be the end of the matter. and we believe or should i say that i believe that religious liberty will be assaulted from every side. and indeed this has already happened. you may have to officiate same-sex marriages and they could be prohibited from preaching certain passages of scripture. as the years go by some are going to be subjected to prison sentences. christians who operate businesses will be required to dance to the governments tune and we have lost teen examples of photographers and pizza
parlors being required to serve at gay weddings whether they want to or not or whether they have convictions about it or not. they have to penalty bankruptcy. christian colleges may be unable to teach scripture views of marriage and sexual relationships among accrediting bodies will say that it is the law of the land. or so say some judges. and i am most concerned by what the courts will talk about what their children. president obama asked the legislators to prohibit parents eking professional therapy from state licensed counselors who would help their children deal with sexual identity crises.
what business does this man have been telling them how to up theirs, especially those that may have been abused sexually. this is outrageous. and in some states counselors have ra lost their licenses for trying to help troubled children in this way. these and other concerns that i could list, they are why we have called this press conference. the u.s. constitution does not grant the judiciary the authority to interfere with religious liberties and parental rights and with the institution of marriage and the family reared here we stand. and we will not go where the u.s. goes.
>> thank you for being with us we have are the made you aware of the website and a handout that has the pledge on it and i would like to make you aware that we have not had dash. >> this pledge that i have brought with me just for the sake of arguing and there is no small number of people. singlespaced over 100 pages of signatures that we would like to draw your attention to, we believe that in time it will go into the hundreds of thousands, if not millions of people in this country who will take the
position that we have taken we have the religious aspect of this whole debate and i have made copies for those that would like a copy and i will just have to use around. and i want to read my remarks. by the way at the end of the presentations we will open it up for a time of question and answer. i am not here to offend or hurt homosexuals are at i believe that the vast majority are like those of the rest of us come and they simply want to be left alone to live their lives and be accountable to the choices they have made. but for three decades there have been an effort to normalize same-sex marriage in america. driven by a propaganda campaign and promoted by activists aided and abetted by judges who make rather than interpret the law.
big business that has been bullied by threats to boycott financial loss and liberal academia and members of the press and the clergy in america who has exchanged the booker truth in their quest for cultural relevancy and now the supreme court of the united states is about to deliberate a matter that has been settled in heaven and affirmed in god's holy scripture and his creative order. twenty-six states, federal judges have overturned the votes of citizens that said no to same-sex marriage in landslide victories. in a one states the legislators passed laws allowing same-sex marriage without allowing citizens to vote in only three states have the citizens of that state voted for same-sex marriage. we have witnessed an attack on god and the veracity of his word unparalleled in american
history judges legislators citizens who voted for same-sex marriage have said that god and his word are incorrect on marriage. perhaps unknowingly they have chosen to deny god's word and have created an illusion that most americans have talked about what god prevents. i am not surprised that some polls have shown the majority of americans say they approve same-sex marriage. we have heard a steady drumbeat for the past decade but one-sided national discussion on the subject. there was also a time in the majority of americans that this country had separate restrooms and classrooms for black american citizens. the majority often gets it wrong. and who wants to be labeled a bigot for declaring what their heart truly believes about sodomy and alternative lifestyles. marriage can no more include same-sex couples in the rock can follow up.
no more redefining marriage then it can redefine gravity and neither are the courts legitimate jurisdiction. i declare before heaven that i will not deny god or his word to create an immense favor. should anyone indulge the notion that one can change what god has said or did we must remember who first conceived of marriage to deny the creative order to attack god's very nature and his word is unequivocal. so god created human beings in the image of god he created them, male and female he created them. therefore a man shall leave his father and his mother, a woman and shall become united and they shall be one flesh.
marriage will always remained the union of a man and woman for three reasons. ordained marriage is between a man and a woman haven't you read, jesus replied, at the beginning, the creator made them male and female and set for this reason a man will leave his father and mother and be united to his wife and the two will become one flesh. as a male and female are designed to be joined together and partnered with god in the creation of another human being. and the union of a man and woman reveals a spiritual lesson. jesus presented the new testament of the bridegroom who is waiting with us supper, to