tv Key Capitol Hill Hearings CSPAN July 2, 2015 2:00pm-4:01pm EDT
enforceability of the covenant pledging tobacco revenues any sort of spider to boilerplate boilerplate. wow, there is perhaps a potential difference and this is what we will see. in the case of the bolivian tobacco revenue bonds there was no shares when the bondholders could call upon to go collect those tax revenues and save it they are house. i mean 30 or 40 years before that, it was still considered good form to send the gun votes down and you put your men in the customs booth and collect the duties until the bonds were paid and you went home. ..
debt. but if we are talking about the bilateral who really has seniority? there is one very interesting statement that was made when they started to create these mechanisms. the imf is senior and then we are next but again who is the sheriff and vinegars to someone else. and i know that in the private sector it was done in greece and there were many private bondholders that wring their hands.
if you look at the way that the debt has been treated in other cases for example the brazilian banks have their own special process and they took no haircut. they took a reduction but they took no haircut. but the logic for that in a way is understandable because if you undercut the banking system than then you have another hole you have to fill. and so forth and on it goes. given the debt structure in puerto rico which is going to have to play out and we will see, i thought that it would be useful to think in a comparative basis about the policy tools that are available in the two
cases. we have tsm resources that may be running out because it is and being met. but that's one of the interesting things. what is the conditionality or policy adjustment enforcement mechanism in europe and what is it going to be and rico? at the moment there is none. there is no bankruptcy system dot one could imagine a control board. that was real policy enforcement and it is in article one territory. it's governed by the congress at the end of the scheme schema and
there will be some back and forth about the terms and conditions between puerto rico and the united states. so one could imagine this type of solution. and heaven knows there's a big movement in the district of columbia. but when the control board was put in coming even jesse jackson said this isn't going to be so bad. it might further the cause. so who knows in the political discourse how this will play out. but that might be a possibility. in europe on the other hand it's the classic no adjustment, no money and that's the impasse we are in now in which we will see playing out. in europe, we have the liquidity that is discussed in puerto rico
we have the fdic. theoretically it is no except in greece is put into the domestic law but at the moment it doesn't look positive. how can each country restructure if it has to restructure. as it has been mentioned there is no chapter nine dot take care of a number on this chart but it's not clear to me chapter nine takes care of the debt. it may take care of the electric company and the like but not necessarily the debt.
it may feel like the control board is more in line and the framework for the private sector negotiations. but how are you going to get consent from the holders? puerto rico is exempt from the act so you don't have to get a 100% unanimity as a matter of statute so you may need 100% in most cases. in greece for the private debt we have the protective action and they even retroactively include an aggregation feature. but we don't have that in puerto rico at this point so that's going to be an interesting one. of course in puerto rico to
contract is there in the u.s. constitution and it's also in the puerto rican constitution but that is a provision that says no state shall pass a law impairing contracts but there is a bankruptcy power in the u.s. constitution and that is what is being invoked for the extension of chapter nine. but it is and with chapter nine if it were deemed appropriate. i'm not necessarily advocating that the constitutional possibility we are talking about the tools that might be available. interesting thing in the puerto rican constitution is the debt service it definitely comes before salaries and pensions. this is an interesting problem. at one point there were people
saying if the bondholders get a haircut because the claim under the human rights convention. then you go to the court in luxembourg and present your claim that the claim in the international wal-mart for domestic law and in a into the public international law there is a doctrine necessity so then it comes down to who decides whether the money is allocated and who knows how that is going to come out. with this provision we may have some interesting questions. then we have the question that has anybody looked at the amendment provision in the constitution because it could be
amended as well. add at the end the basic distinction is going to come down to the fact that in greece they do have their own legal system and so the bonds which are governed by the other obligations where there is a four-run may end up with one treatment and obligations which are governed by the local wall and other treatment. it doesn't sound terribly fair but that comes down to the sheriff's problem, and in puerto rico as i said we are all within the u.s. legal system so we don't know with certainty how it's going to work but there is a higher probability that some of the dedicated revenue streams which have been pledged might actually be honored as such.
but if there is an overriding bankruptcy solution coming from the u.s. congress that may be by the wayside into the usual domestic bankruptcy negotiation. i think i will stop there. we could talk about how the debt to equity conversions by quirk and legal structures for the guy think that is still down the road. thanks. >> thanks to all the members for excellent and extremely well-informed presentations. i would like to give the panelists a chance either to comment on what somebody else has said or expand on something you would like to do. one to two minutes and we will just go down the road and see what you might want to add.
>> it seemed like everyone had a different debt to economy figure. we would use the national product for puerto rico. they taxed those offshore manufacturers and in fact they prefer to tax the offshore manufacturers to residence and then increase the taxes and i'm not sure if you've heard of the definition of the perfect tax but it is levied on all foreigners living abroad. so we would use the gross domestic product and the underlining in his abilities in comparison with greece you are using federal debt and we would end federal debt in that
accusation. there's a lot of differences. i think it is very clear what could happen. the courts invalidated the restructuring clause which is their version of the chapter nine and indicates they are not going to be pushovers for police and fire versus det although if it comes down to essential services probably will come somewhere below. >> i would agree with the last point that bondholders come out
on the short but that's how you get haircuts. i think in both cases, one of the things that's always hard is to put yourself in the place of the people that are into crisis from day-to-day. i got a note from a friend that actually leaving for greece on friday. he's taking three kids and a wife. the mother-in-law can't get money out of the bank so you see the crisis built up. the average person according to my friend is they look at it as an attack on their culture and not on their front finances. it's an attack on what they've had all along. so, for example if you are a teacher in greece, you get 12 to
14 months and what happens is people have lots of kids because basically you can go five years to six years and work only six months out of those and get paid for and through. now this is an extreme example. but the idea is that if you had this a long time, it's what you are used to. in puerto rico when you look at the great point that was made by burt was about the differences in wages. here you have the minimum wage in the u.s. as a bird into the private industry in puerto rico. however if you look at the vast amount of people employed the pay substantially higher than minimum wage so it is almost a
two-tier system but no one is going to shrink and they haven't been linked to shrink the holy through and it was absolutely in 2006 when they started losing the corporate subsidies. so you have to change the mindsets. >> think you. >> i just wanted to make one point that is raised to make the comparison between puerto rico and greece. it's true that theoretically they can move with the european union in practice the labor mobility isn't so great in europe either for linguistic reasons were housing they don't
have the kind of movement government that you get from puerto rico to the united states. and and that really changes one aspect of the situation and that i don't think that this is just an issue between the puerto rico government and the creditors. i think that they also have depleted there or their or not we want to have more people coming to england were more welfare. >> when i take a look at this it occurs to me that we have two fundamental problems that have to be solved. one is the debt restructuring that has to be done restructuring that has to be done in the economy and in the almost tougher job as the
economy going forward. if i could do this in a somewhat religious or realistic sense, the debt restructuring effectively reflects the cost in the past of public policy. the economic restructuring that is needed is to prevent sins in the future and the question is the wind in the past and also in many ways much tougher job to prevent future sending in terms of unproductive economic policies. his bag at the end of my remarks it may be that one of the tools
which can be employed that might make a contribution in both areas both in the adjustment area and also in terms of helping to solve the financial problem might be the possibility of using the debt equity conversion. we can think of this electric company that needs to be restructured that has a high cost structure and there are some other external policies that while that might be looked at to help that situation. but that is a time-honored way of dealing with excessive debt. and if you can take the current cost of electricity in puerto rico for 20 cents a kilowatt and bring it down to the average united states at 10 cents a kilowatt hour, there will be a nice boost for the economy. >> thank you.
sure. >> the other point i would like to make is for the upcoming budget for puerto rico, they've implemented a significant increase in the sales tax which ideally would have an affect on the economy. then also to the extent and not that it would have been in happen in the near term, but if the payments were ever cut it would also have an affect on the economy, so they are not necessarily out of the woods yet even though they've been kind of flat funding right now there are other things. in 2006 when he had an increase of following the tax cuts but also lead to some huge fiscal deficits so trying to catch the tail by closing the deficit can also have feedback on the economy in the increase. >> i would like to add three
comments before we get to questions and answers. a lot of what we've talked about make me think that a saying of john maynard keynes, who was a great weight as well as thinker said there is a limit to which any society will sacrifice itself for the bondholders. this is true and it gets to the point john was making and others how much sacrifice for the bondholders. if you've built the whole system however, which it's very functioning depends on the ever increasing borrowing for the bondholders when you run out of other people's money as i said before that system stops and then we get to this important point about point about who is the sheriff and of course in good times we don't worry about the sheriff. it's only when push comes to shove that we worry about the sheriff and that in all of these cases this is a really huge
issue. >> i'm going to let you talk in a minute but i want to hear that your point which is in historic american financial crisis when the bank would stop payment as they called it in those days which meant you could go to the bank but you couldn't draw out your gold something very interesting happened. now we have the bank's that have stopped payment. what could we expect to have been? what happens is people invented money to keep functioning. so you had local merchants for example that would issue notes or the local establishment would get together to issue the local currency which people could use and would be interesting to see if things like this maybe don't start happening c. today in
greece to replace the money that has been withdrawn, one comment and then we will come to questions. >> you made an important point about what people are going to sacrifice for the bondholders. i would say there is another important element to sacrifice and that is to what extent will people make sacrifices for the future for people in the future? and i think that is highly problematic, too. >> thank you. ladies and gentlemen we are great to come to your questions. it will be recorded for all speaking futures which will watch this on the website. tell us your name and affiliation. because we have a lot of questions, i know that many of you will wish to make statements but i'm going to have a strict limit of one minute to get your question out.
let's start here and then work around. >> one observation, the chart is very telling because the inflection point and that is 1933 which is when the u.s. left the gold standard. so if greece wants to grow it is a very simple answer which is assuming that happens because i think it will my question to the panel, and i guess specifically for whitney but others may want to weigh in some people may want to play in be in as well. in the official debt restructuring how do you see the credit playing out specifically on all of the non-european directors going to go to the europeans and say you have to make us whole and you tricked us into this.
we were way over our heads. this is your debt. and is it going to happen quite quickly? >> somebody want to take that? >> in the question of seniority, there is no seniority for the imf. it's de facto. the only way that you protect that is by not over lending, and one could argue the first package for greece was three parts per eight parts europe but then when it moved into the second phase they changed that to one part for two parts europe and the current thinks that is excessive in their package it was back down around 10% level. the question of standing is still whether it was too much
and whether they are going to suffer as a consequence. what but i am assuming that even if greece exits and reestablishes its own currency that it may still want to remain as a member of the imf and there will be ways that this will get worked out and the true seniority of the imf will hold. but it's the need for others to make a contribution to make sure that happens. >> if i could just add to that this may be a situation where they are deliberately or just the way things played out over committed itself and may have done some really serious long-term damage to its autonomy and that those that funded well alternately put a tighter rein
on it in the future for the kind of commitment. >> we will go onto on to the next. over here. >> thank you very much. the american bankers association. not surprisingly i have a question perhaps. one of the cornerstones of the capital liquidity regime that is all an instrument of better than gold. they think they've taken care of the great exception. they sort of put that to the side. but unless we assume greece and puerto rico are anomalies should we be concerned that the regimes that are going to increase the exposure of the global banking system to sovereign instruments both in the capital and in the liquidity click >> i've never been a fan of the treatment for the government at.
i think that basically reflected the contrast because it consists of representatives from their own national government. but, hopefully with enough of these catastrophes there will be some serious rethinking of the extent to which the government debt and particularly the national government that is given a free ride to speak. this may be the situation that leads to the fundamental rethinking. >> this is a problem that will be filled with around 2012. but that certainly hasn't been the case. what we have seen is a lot of the countries in that european talent at the spanish getting their banks divide the sovereign bonds so we do have a massive problem of the interlink between the sovereign and banking system.
i'm also rather surprised they have been extending as much money as they have to the banks so the amount is around 110 billion. and a lot of that collateral is the sovereign bond which i'm not quite sure how solid the collateral that is. >> but as the anti-discussed before if the main purpose of having a central bank survey will buy your debt. >> right here please and then i will get to you. >> go ahead. >> go ahead and then we will come to you and then up in the front. >> voice of america. two questions. as simply as possible. what is the most likely way forward for greece and what is the most likely way forward for puerto rico? >> my belief is that greece will
have to exit the euro. i just don't see how they can stay with it given all the structural problems in the economy. and then if they do, the eu may kick them out and that may be the tougher issue to address. with regards to puerto rico its stock for better or worse the structure of the united states and so it is going to have to come in number one, see some significant debt restructuring as we have seen in the great financial times chart it could be a very complicated multifaceted process. and then the have to go through with the cooperation of the united states congress to make a very significant structural reform. ..
what would occur though is what alex referred to is that the greek government was in the running out of money. so what they will be doing is they will be paying people whether pensioners corporations, paint them with ious. we will going through a phase where we left two currencies effectively circulating in greece, one a euro the other the aisle you. that might be a transition way
down the road. >> john, predictions? >> let me add one thing to what desmond said. here in the united states illinois has been doing that or the last few years. they had been paying vendors in ious. it used to be you could actually go to a bank and get a discount with the aisle you and get paid. you have to take the ious and get paid a year later. they do then in order and there's a pecking order to. i agree. someone who buys bonds manages bonds and manages risk you always say you know, are you getting paid for the risk. i would say in the insured come as we are, there sure were getting paid. yes, getting significantly paid well for 5.5, 6% tax-free yield which is a 10% taxable
equivalent where you know you're the resources to be paid back, the answer is yes. on the uninsured debt no. what's also interesting the is engine made the point, is that the capital markets in the end are your friend and you can't disregard them to the point where you don't have future access to capital down the road. an interesting side point if we went back and we saw some pictures with a great depression. in the great depression, in this country you actually had about 1700 municipal entities go bankrupt, and bad action include the state of arkansas which itself make payments to kosovo counties and towns so they wouldn't go bankrupt. so the state took the hit. but good part about this is that almost all of them except for maybe a few dust bowl towns in oklahoma which literally blew
away, all the other municipal entities in the united states ended up repaint all of their debt in full down the road after they make changes and the economy got better. so it tells you that the restructurings that will go on now don't mean permanent removal from the capital markets. and it doesn't mean in the long run you are not paid back. >> thank you. come right here. gentlemen here. thank you. >> brian, washington correspondent, your politics. there may be a simple answer to this but i've always wondered why a country like japan can have for years and years 240% debt-to-gdp ratio and rising, and nobody ever asks the question if japan will go into default. of course, 180% is a huge figure but it's still a lot less than 240%. puerto rico, 80%, a lot less than 240%.
>> does when the company think that's right up your alley. >> it's something that does keep me up at night kind of like wondering if this doesn't make much sense. i think i would be concerned about japan partly for demographic reasons. if you look at japan's demographics, what you're getting is you're getting the aging of the population. so japan used to have very high savings rates domestically. they had a lot of repression in the banking system, institutions be forced to buy japanese bond. that party went on, the a not very dependent on foreign bondholders. they've only got something like 10% of the bonds are owned by foreigners. going forward the concern is that as the population ages they will be drawing down on their savings and they will become more dependent on foreigners, and this is a party that really can't go on indefinitely but when it worked on salomon brothers i was told
there was a plaque on the wall saying how many traders lost their jobs by being short in japanese bond markets. so it's not a good idea to short that market yet. >> thank you. i have -- go ahead. >> a great point there were lots of hedge funds shorted the japanese government 10 year bond at 2% saying this is incredibly low level. those hedge funds are all in potter's field. the other part last year japan sold more adult diapers and diapers anything that tells you all you need to know about the demographics. >> we still have a question up here. wait for the microphone please. >> part question part statement very quickly. i agree with david that obviously puerto rico has a high probability of default event.
but i still have been heard anything from the panel about why they need to default or restructure. i think we have a dramatic shift from willingness to pay, from ability to pay being the focus to willingness in puerto rico. the facts are not any country in my memory, and i've been involved in a lot of these, has ever restructured with a debt-to-gdp ratio below 40% with an average maturity of its a debt of 25 years, with an average interest rate on death of 5%, with a current consolidated fiscal deficit below 1.5 below 1% is projected for this year. it's a willingness to pay. and there's a group of creditors perhaps including the insurance companies which are willing to put about $3 billion in as bridge financing. what we also observed is
countries would suggest -- >> excuse me. you had your minute your i'm going to take the question as anybody has come to willingness to pay. maybe, whitney, that one is for you spent well, i'm not an economist on the panel. >> that's why you get the question. >> yeah, right. no, i mean i may be one of the few people in this room who has actually represented a sovereign at a time when they declared a moratorium just outside declared and, of course, six weeks later they thought better of it. i think that the question of adjustment in these economies is really paramount because that really has to do with the ability to pay. and there have been some references here to cultural limits and things like that.
but in some societies they pass the hat in people put in their personal gold so that the country can pay its debts. we don't see that happening in either one of these two cases. so that is that dimension. i think one of the reasons just to supplement my earlier response about the imf and its seniority is the imf in a sense is in part the useful enforcer. and we will have a utility along with its enforcer will also have some dip financing goal. so people will find a way to do that. i think what we need in each case is a mechanism which helps the borrowers see how they can make their way forward.
we've talked about script. when i was in government or california came to the tragic and knocked him to come as for help until to the government think about it some more. they managed to adjust. they did raise taxes. i know that well as a partner in a law firm with operations in california. a marginal rate is quite high. it's not necessarily growth inducing. i think the difference though is california had a basic underlying economy with a lot of heart and a lot of potential. the question for these two economies is really they are economically so inefficient how can we help them make that adjustment? >> these have to be very short. >> keeping about puerto rico to go visit have lots of different bond structures and entities. somoza revenue bond. we take a look at the electric utility specifically. it is independently financed.
it has very serious financial problems. its debt is certainly a prime candidate for restructuring. i can't imagine that prepa will be bailed out by the government. >> it depends on how much the fiscal judgment does the country need to do in a currency union. the lessons that we've learned from greece is that requiring a country dependent major fiscal judgment within a currency union general is not a good idea because it's just going to tank the economy for the. just with the chart ipo to come this has structural problems already that is decline. all you would do it just accelerate its downward death spiral. >> look at both willingness and ability. in terms of ability in the short run the are no liquidity crises write me. so that's your answer. that's partly brought upon by
the willingness to make adjustment to bring external investors. there's elements of both. >> i saw a hand weight in the back. >> jim glassman from aei. so these is a sovereign country. puerto rico is a territory of the united states -- so greece -- how much culpability does the white house and congress have over come in the puerto rican situation? this is not a big surprise to some of us have been writing about this for the last year and a half and testifying in congress and yet there has been no response at all from the administration or from congress. >> okay, how guilty is in the u.s. the government for puerto rico's problems? >> i would think very guilty and terms of non-action over the last five or six years when it's
become pretty clear that they needed help. and there's this really since 2008, lehman an aig, there's just no bailout mentality and congress, except in this case it's their responsibility. and so in my opinion it's been a total abdication of responsibility, and that isn't necessarily bailout. that's getting involved in a territory the reports to you. it has nothing to do with detroit. it has nothing to do with harrisburg, pennsylvania, because they have states overseeing. this is congress' problem and it's high time they got involved. >> this is just typical of how congress operates. i'll draw analogy with the s&l crisis back in the '80s. that crisis was emerging through the '80s but it was until we had a change in administration in 1989, and s&l industries back was really to the wall much more
so than puerto rico. congress to act. i certainly cannot expect us to go we should not expect congress to act in a tiny mini. they don't act until the actual crisis staring us in this. puerto rico is not there yet. >> i just want to to state that already does not assume any extraordinary federal support. neither do we anticipate it. >> ninety. we have done for one more question. i haven't had one from this site. anybody? last question. >> joel chandler. you talk about past sins and futures and what's the difference between puerto rico and hawaii? why was how why seemingly successful and puerto rico not? >> of course i think it's a different culture between the two entities. the other thing to keep in mind is, number one, hawaii has been able to maintain a strong support from the u.s. military.
puerto rico a lot of military presence there was cut back. the other thing of course is a lie is a state and puerto rico is in this limbo land, and i think that is a factor also. >> all right. we could talk about this a long time and i expect we will some more to ladies and gentlemen thank you for coming and let's show our appreciation for an outstanding panel. [applause] [inaudible conversations] >> some campaign news. the hill beside wisconsin governor scott walker with the official paperwork to dukakis 2016 gop presidential bid today and will make his official announcement in waukesha, wisconsin, on july 13. they write that he is the highest profile potential
>> one of the most surprising things during the net neutrality sock of lester was the massive outpouring of public. i want to ask you were you surprised at the amount of comments that came in? what was the early but when you were like this is bigger than most policy debates are? >> there was a day early on when we had 100,000 and yuko weight. but then that's why this debate, that's why this decision was so damned important. because for those 4 million people are filing with us, not all of them were -- >> mostly. >> it was about three quarters were pro- >> still annoying people didn't like the idea. >> which is a nontrivial amount.
the point of the matter is that this proves the power of an open internet to free expression. and it just happened that the issue being decided and the ability to can indicate using that technology happened to coincide. >> fcc chairman tom wheeler, and not nor alex cline who described his computer design kit for children are part of the techcrunch disrupt new york conference the it airs tonight at 8 p.m. eastern time on c-span c-span. >> here are just a few of our featured programs for the three-day holiday weekend on c-span networks.
>> good evening, everyone. welcome to the david a. clarke school of law at the university of the district of columbia. and a civil and human rights seminar. tonight we have a special program to deal with the recent decision by the united states supreme court concerning marriage equality. i'll turn it over to my co-professor, wade henderson to begin with the introduction. i am john brittain come and together with professor henderson we teach the seminar on civil and human rights in the 21st century. professor henderson? >> thank you. good evening everyone. as john said i am wade henderson, but professor of public interest law here at david a. clarke school of law university of the district of columbia. i'm also the president and ceo
of the leadership conference on civil and human rights. and nations leading civil and human rights coalition with over 200 national organizations working to build an america as good as its ideas. on behalf of jon and myself i would like to welcome you to our seminar on civil and human rights in the 21st century. now without question the supreme court's decision last friday in the case of obergefell versus hodges which finally recognized marriage equality for gay and lesbian americans as a fundamental constitutional right is one of the most important decisions of his century and one of the most important supreme court decisions in american civil and human rights jurisprudence. the court acknowledged the full dignity of lgbt americans to love and to build a dam as equal in our society and ushered in a
new pair of acceptance and family security for lgbt americans. but, of course, there is still so much work that we must do as a nation to end the second class citizenship of lgbt americans and to ensure that lgbt americans have the same protection already established for the majority of americans, including people of color, women, religious minorities, and persons with disabilities. so we've asked a good friend of both john and mine come at the law school here at the university of the district of columbia our colleague chai feldblum to be tonight's featured lecturer and to discuss the obligations and importance of the decision. as well as the ongoing work our nation must do to secure the full rights of lgbt people in the united states. now, chai is a well-respected
and distinguished public servant who has spent her entire career working for civil and human rights. she's a graduate of harvard law school and she clerked for justice blackmun on the supreme court. she was confirmed in 2010 by the senate to serve as a u.s. commission on equal employment opportunity, and is currently in her second term as a commission. she's the first openly lesbian person to serve on the commission. chai is also a professor of law at georgetown university law center where she has taught since 1991. at a loss after she founded the federal legislation and administrative law clinic which represented clients such as catholic charities u.s.a., a national disability rights network and the battle and center for mental health law. she also founded and directed workplace flexibility 2010, a policy enterprise focused on finding common ground between
employers and employees on workplace flexibility issues. as legislative counsel at the american civil liberties union from 1980-1991 a period during which chai and my tenure of love, chai played a leading role in helping to draft and negotiate a groundbreaking americans with disability act of 1990. and i also the opportunity to work with chai in my role as president of the leadership conference when we were working to get congress to pass the americans with disabilities act amendments in 2008 which overturn supreme court decisions that had reduced protections were certain people with disabilities, including people with diabetes, epilepsy heart disease, mental disabilities and cancer, who were originally intended to be covered by the ada.
in addition, chai helped to draft the employment non-discrimination act a bill which is still being considered in congress that would prohibit employment discrimination based on sexual orientation and gender identity and is molded after the civil rights act of 1964. now, john nor i could think of a better person to be tonight's lecturer. the without further ado please join us in welcoming commissioner chai feldblum to the podium. chai? [applause] >> thank you. >> chai will give her remarks and then we will have some questions and answers. there are two students in the class he will pass out wide cards do you come and anytime you have a question just write it down, and when she finishes or shortly before then it will come rent and collect it. would you raise your hand? there's one here in there's one in the rear. just pass your card to him or
her to her and to present them to me. we will filter some of them and i will read your questions for the commissioner, wade or i could answer. please begin. >> think is a much. so as you heard -- and as you now heard from this microphone -- okay. and i gather that -- >> this is the live one. >> that's the c-span one. so you are fine with that one, correct? >> correct spin azure i'm going to talk about the decision that the supreme court handed down this past friday obergefell versus hodges. and as you heard in that case the court ruled that same-sex couples have the same fundamental right to marry guaranteed by the federal constitution as to opposite sex couples. and by that ruling the court
invalidated any state law that kept gay couples out of the civil institution of marriage. so, as again i'm sure many of you know the opinion was written by justice kennedy joined by justices ginsburg, breyer, sotomayor and taken and defense were written by chief justice roberts, as well as by justice scalia, thomas and alito. there were no concurrences in the majority opinion. there was one majority opinion and then for thank you. i'm going to talk about the opinion in two ways. i'm going to talk about the legal reasoning -- dissents -- and going to talk about the social and moral message that was conveyed by the court's opinion by not only the result but also the legal reasoning
that justice kennedy used. by those who have read the decision already, i hope that this talk will provide you with the additional insight. for those of you who have not read the opinion, i hope this lecture, this talk will serve the same purpose as a book review often serves. how much times have your i haven't read the book but i've read the book review. even if you don't read the opinion, hopefully this talk will serve as the book review. so i think one way and perhaps the best way to understand both the legal reasoning that the court used and social message it sent is to compare the court decision last friday, in june 2015, that states may not deny same-sex couples access to the civil institution of marriage. two, the court's opinion in
loving v. virginia headed down in june 1967 that a state could not criminalize the marriage between a black person and a white person. both of those decisions grounded their results in the 14th amendment of the constitution. both of those opinions said these laws violate the 14th amendment of the constitution, violate both the due process and equal protection clause. now we are going to see how they use those in slightly different ways, with the loving case will be leading with equal protection and then adding a dose of due process, and obergefell bleeding with due process and adding a dose of equal protection. so let's look at the words of
the 14th amendment. no state shall quote, deprive any person of life liberty, or property without due process of law, or nor deny any person for due process with the equal protection of the law. so first clause no state shall deprive any person of life liberty or property without due process of law. welcome as you can see this as nothing about what the right to liberty includes. like there is no definition of liberty, right? for example, it doesn't say a person has a fundamental right to raise children in a particular way. a fundamental right to procreate or fundamental right to use contraception or to get an abortion, or for that matter a fundamental right to marry. it just says no person shall be deprived of liberty without due
process. same thing with the equal protection clause. the equal protection clause does not say, well, public schools minutes aggregate on the basis of race. or public universities may not refuse to admit women. it just says no state shall deny a person the equal protection of the law. so over time judges have advanced two ways, two approaches of giving this language meaning of interpreting these words. so one way is to focus on the intent of those who drafted and ratified the 14th amendment. what did those people think of right to liberty meant? what did those people think a right to equal protection and? this is called an originalist view of the constitution. the meaning of the constitution
should be primarily, if not solely, determined based on the original intent of those who drafted and ratified that portion of the constitution. an alternative approach to interpretation is to say that the drafters of the constitution, including the 14th amendment, intentionally specifically used general open-ended terms so that over time the constitutional protections would encompass whatever the country then understood to be included in liberty or equal protection. this is called a theory of the constitution as a living document, a living constitution. this latter view is the one that justice kennedy used in his opinion. here's a quote that i have now heard already in a speech tv soso you get sick it's an
important vote to i'm going to quote it, too. quote, and nature of injustice is that we may not always see it in our own time. for generations that wrote and ratified the bill of rights and the 14th amendment did not presume to know the extent of freedom in all its dimensions, end quote. and that is why justice kennedy explained, the provisions were written in an open-ended way that would encompass new understandings of liberty and equality and, in fact, it is precisely the responsibility of the supreme court of the united states to discern and apply these understandings. now, over the past hundred years, supreme court opinions have been decided based on this approach to the constitution as a living, growing document not interpreted just by what the original intent was.
so despite the alarming reactions from a number of the dissents, newsflash, i'm telling you, the obergefell case is not the first time the court has used this approach. pretty standard way of interpreting the constitution. okay. but even if one acknowledges that interpretation of the 14th amendment must encompass new meanings and understanding doesn't mean that the 14th amendment prohibits the state from enacting, from enforcing a democratically enacted laws that prohibits persons of different races from getting married. or does it prohibit a state from enforcing a democratically enacted a law that prohibits people of the same sex from entering the civil institution of marriage. the supreme court has not
answered both of these questions in the affirmative. so let's compare how they got there. in each of those cases. in the loving case, just to remind you, the state of virginia had criminalized the act of opposite race couples eating married. challenged under both the equal protection clause and the due process clause. estate respond in terms of the equal protection clause with two arguments. first they said no equal protection problems because we are criminalizing and penalizing black and white people equally. okay, if a black person marries a white person composer joe. at a white person marries a black person, goes to joe. equal treatment. the court did not buy that argument. know, the law is using a racial classification that means you're taking race into account. that brings the equal protection clause into play.
so the states next argument saying if you don't buy our first one, they say there's no violation of the clause does our state as a rational reason for enacting this prohibition. and the reason that they gave at least a the supreme court level was that the scientific evidence of the impact of interracial marriages were still as they call it substantially in doubt and, therefore was rational for the state to prohibit such a marriage. court didn't buy that argument either. number one they point out when there's a distinction based on race, the court is going to adopt a less deferential attitude to democratically enacted laws. the whole point of the constitution is to make sure that there's a backstop to civil rights backstop to make sure kerry infuse. so they said no there has to be some legitimate overriding
purpose for the law is not simply a desire to treat one race more poorly. now, the state's own justification for the law when you look more into the record was asked the court described it, quote, to maintain white supremacy. that was the goal. they don't want mixing of the races, they want to keep the race is pure. and the court said that's not okay. that's a violation of the equal protection to have that be your reason. so law invalidated under equal protection. the court then threw in a dose of due process. it ruled into short paragraphs that virginia's law also violated the due process clause of the 14th amendment. it explained that quote marriage is one of the basic civil rights of man fundamental to our very existence and
survival and therefore, the court said, to deny this fundamental freedom fundamental right to marry on so unsupportable a basis as to the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality come at the heart of the 14th amendment, issued to deprive all other states citizens of liberty without due process of law. so it's also in violation of the constitution, also must be struck down as a violation of due process. now, i believe they were important ramifications to the fact that the court in loving used an early equal protection law and rhetoric both in terms of the legal ramifications and the social message imported. when you use equal protection, you are not -- presumably a lot
of things people wanted to do without having to encounter racial bias. maybe they wanted to buy some items, from a military commissary store without being told the store doesn't strip black. let me to you there's no fundamental right to go shopping i'll take what some people may feel that but there is no fundamental right to go shopping, and he deserved in a store. i did a military commissary store so it would be covered under the constitution, but they would be an equal right to be served. there's no legitimate overriding purpose do not serve someone. the equal protection has a broader scope. but i think the second by deciding to constitution primarily on equal protection grounds, the court set a very strong moral and social message because the message was that the ideology of white supremacy could not justify unequal
treatment. and that was the message they came out very clearly through the equal protection analysis. now, what i find very interesting is that even though they were just two paragraphs in loving about due process, loving is largely remembered as a strong due process case setting forth the fundamental right to marry. like the first key case. it will be curious to me to see whether the equal protection analysis of obergefell, i know it's hard, that name, whether the equal protection analysis of the case over time into being some of the most important aspects of that case. so we will see. okay so we get to that case. 48 years after the supreme court decide the loving case it is
faced with the question of whether a state to democratically enacted laws prohibiting same-sex couples access to the civil institution of marriage is unconstitutional under the 14th amendment. as in loving the court decided yes, it's unconstitutional. so how did the court get there in this decision? remember, the 14th amendment does not say anything about a person having a fundamental right to marry. but for years far years the supreme court had ruled that certain substantive rights were included in the word liberty. substantive rights. not just the liberty of not being put in prison, which, of course, is a basic part of liberty and other certain substantive rights. the court concluded these rights include the right to bring up one's child in one way, included
if you want to learn german. a case in 1923 the it include he had a fundamental right to procreate, in a case in 1942 invalidating all the required sterilization of some criminals. a fundamental right to marry which was asked to trade in the loving case. and then in the late '60s and early '70s the fundamental right to use contraception or to have an abortion. so in these cases the courts have interpreted the due process clause as protecting certain fundamental rights under the rubric of liberty from infringement by the state absent a strong justification. that was have interpreted the due process parker absent a strong justification. all of these cases liberty interest in calgary procreation, marriage,
contraception and abortion, all of these cases were on the books when the u.s. supreme court in 1986 was faced with the question whether a state that criminalized sodomy between two consenting adults violated the liberty interest, the liberty rights of those individuals. many of us thought that it surely did based on the logic of the previous cases. but in bowers v. hardwick in a 5-4 decision written by justice white, here's a justice white started out his analysis. explaining the relationship between those previous cases and the question before the court. quote, we think it evident that none of the rights announced in those cases bears any resemblance to the claims constitutional right of homosexuals to engage in acts of
sodomy. no connection between family marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated. no connection between family, marriage or procreation and homosexual activity on the other has been demonstrated. now, i was clerking on the first circuit in 1986 when this case was scheduled to come down. i was also already committed to working as a law clerk to justice harry blackmun the next year. for the last month of the term i called the court every day to find out whether the case had come down and have a justice of had voted, okay? free scotusblog. there was a number you could call. there was a tape recording.
you could find what case were decent, who was in the majority, who was in the dissent. you know, basically what it the court had a firm. so i was clearly relieved when it got the tape recording message that said that justice black been at least was in dissent. i was clearly upset if we had lost the case but i can't think of it all to come on cloaking for justice blackmun and he written what was seen as a very strong dissent on behalf of the people. but you know, two weeks after i started at the court, i walked into the elevator and justice white was standing there. there i am in the elevator with justice white, and my stomach clenched and i thought this man does not think that there's any connection between the lesbian
relationship i have and other relationships of family. and my eyes stung. well my eyes stung again 17 years later, but for a different reason, when i was sitting in the courtroom in 2003 hearing justice kennedy hand down a decision in lawrence v. texas overruling bowers v. hardwick. and here's what justice kennedy said. here's his legal reasoning. he drew on the leverage of cases that have found fundamental rights to use contraception or to have an abortion. and in those cases justice kennedy explained the court has defined a liberty to include come and this is how he described it, the right to make certain personal choices central
to individual dignity and autonomy. that liberty included the right to make certain personal choices central to individual dignity and autonomy. and then he applied that right to the personal sexual choices that trying to make. and he stated -- trained to make. he stated those choices were one part of what he called a personal bond between two persons that can be enduring. and that is why he said the liberties protected by the constitution have to allow gay people to engage in such sexual activity without fear of criminal prosecution. part of why it was a more my fears, my eyes stung. i tried, okay? partly was the relief having the bowers case overruled that it done such how do gay people in
the previous you take but is also it was the first time that the country's highest court have described the relationship and respectful manner to in a way, a similarity between the intimacy of gay relationships and straight relationships could be imagined. justice kennedy was also very clear that he was not saying that gay relationships necessary deserve the same legal recognition by states as opposite sex relationships received. so here's how he put it. he said, state sodomy laws seek to control a personal relationship that quote whether or not entitled to formal recognition in the law end quote, is within the liberty of persons to choose without being punished as criminals. so without ever saying the word
marriage, he made it clear that this opinion did not say anything about the right of gay couples to access owners to you tenuous stability that states could not make a sexual gay relationship a crime. so in 2003 just as kennedy was not faced with the question of whether states had to give gay couples access to the civil institution of marriage. even two years ago in 2013 in the 5-4 decision in windsor justice kennedy again writing for the court, the only thing the court has to decide and the only thing the court did decide was whether a section of the federal law, the defense of marriage act violated the due process clause when it required the federal government not to recognize civil marriages that have been validly entered into by same-sex couples in various states. and the court decide it did violate the due process clause,
and that section of doma was invalidated. but in the cases that came to the supreme court this term the court did have to decide the ultimate question of whether the denial of civil marriage to same-sex couples violated the liberty interest of those individuals. and does all those watching the supreme court new that meant that justice kennedy would have to answer that question for himself. now, justice kennedy described his evolution on this question from lawrence not as follows quote, and they read this from the bench as well, while lawrence confronted to mention the freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. outlaw outcasts may be a step forward, but it does not achieve the full promise of liberty.
justice kennedy absolutely sees this ruling as a means of moving gay couples from being outcasts to being full members of society. i think a lot of us as gay people have not viewed ourselves as outcasts for some time. we have an out and proud for a while. but there is no doubt that is a decision stating it no uncertain terms that gay couples deserve the same access to civil marriage and straight couples is a statement unlike any other about the dignity and worth of gay people. the way that justice kennedy got to this place was simply to apply everything he had said before, and carry it to its logical conclusion. so we started of course with a very cases that dealt directly with the right to marry is a fundamental liberty right. these include primarily in 1967
loving v. virginia case as well as a later case that invalidated a state law that prohibited fathers who are behind on child support from getting married. that was invalidated. and another one that invalidated regulations that limited the privilege of inmates to marry. now, of course, the justice kennedy has to acknowledge that all these cases had presumed relationship involving opposite sex partners. as justice kennedy put it, quote, the court like many institutions has made assumptions defined by the world and time at which it is a part. so to answer the question now rather as he decided the fourth rationale of the past cases should also point now to same-sex couples, justice kennedy said well we need to explore and respect the basic
reason why the right to marry has been long protected. we've got to go behind figure out the reason why this is a fundamental right, and then based on those reasons see how that applies to gay couples. so it's worth reason was to say well, there's a fundamental right to marry because the right to personal choice regarding marriage is inherent in the concept of individual autonomy. this has been a major thing for justice kennedy. liberty includes being able to make personal choices that are central to individual dignity and autonomy. so he says in the opinion two men or two women have the same right to make this profound choice as a man and a woman. now, justice kennedy could have stopped right there, right come in terms of a due process analysis. it is a liberty interest in making this profound choice as to whether to get married, and a state may not restrict of that
at least not on the basis of race, child support status quo prisons desperate no overriding purpose restricting that profound choice. for those of you ever been to a passover seder, one of the main computer, stored of songs that we sing is if god had just taken us out of egypt that would've been enough. so he could have just done that with due process violation but he didn't even on editing partly why he went on was this case was a hard case for justice kennedy. he had evolved in his understanding of this issue and he wanted to explain why. he wanted to explain why the logic of cases applying the fundamental right to marry applied equally to gay couples.
so another reason why there's a fundamental right to marry, he explained, was that it helped safeguard children and families. marriage safeguards children and families, and the state has an interest in that. justice kennedy for some time has been very affected by the research showing that about 100,000 children are currently being raised by same-sex couples. research done by the williams institute. and as he explained in his opinion, allowing those couples to marry would be incredibly important to those children. not just because of the material benefits it would get but because it would use the stigma that attaches to their families. so did he could've stopped his the due process analysis there. those are the key reasons why there's a fundamental right to marry. but he had two more reasons.
first, the right to marry is fundamental because it is a unique relationship. it supports a two-person union unlike any other in its importance to the committed individual. here's one of the things he says. marriage quote response to the universal fear that a lowly person might call out only to find no one there. it offers the hope of companionship and understanding and the assurance that while both still does, there will be someone to care for the other. i don't know about you but after know a lot of anger to people who are not lonely. and have very good friends i will actually be there to offer companionship and care. but i believe that for justice kennedy and for many previous supreme court there is a fundamental right to marry not only because it is an important
personal choice, but because marriage itself is so important it is so exalted. and a lot of the rhetoric captured of that. and an additional reason that justice kennedy put forward is that there's a fundamental right to marry because quote marriage is a keystone of our social order. that's why, justice can explained, it was appropriate for a state to place the status of marriage right at the center of the legal and social order. but precisely because of what he called the precious status of marriage, is committing a men and lesbians from the status, quote, as the effective teaching that gays and lesbians are unequaled in important respects. it demands gays and lesbians -- d. means gays and lesbians to lock them out of a central
institution of the nation's society. so after this long exculpation on due process justice kennedy then those to equal protection notes that the right to marry is derived also the right of same-sex couples to marry is also drunk on the amendments guarantee of equal protection. he doesn't do it for equal protection analysis, talks a lot about the two clauses being interlocking and reinforcing. but clearly he knows he has to address the equal protection clause. he has to ground his conclusion in the equal protection clause as well, not only because it has been argued so much because you could just find in one clause but i think in order that the other four justices come in order to ensure that there are going to write concurrences about equal protection, they negotiated this section with justice kennedy. now, what's interesting about
the way to get protection in those situations is either under the equal protection clause 43 statute that the congress passes, state legislatures pass require a call at 25 equality and obviously a statement that says it is a violation of equal protection to treat gay people differently. a differently. a boost to the equal protection analysis with regard to other government action and a boost in terms
of equality under existing laws. for example the argument that discrimination on the basis of sexual orientation is actually always discrimination based on sex is an argument that is beginning to play out in the courts from an argument which the commission i am on has engaged with and is said has said is one of the excavation. that is not dismissed by the court. it is not even addressed. a form -- it violates the equal protection clause, clause, not even telling us why. justice roberts asked, isn't this just pure sex discrimination. if it is based on their different the different sex is sex discrimination. i actually think that this statement that there has been an equal protection violation with this law with these laws even not explicated will end up
having a significant effect. the legal ramifications could be narrow, but i do not necessarily think there will be. but i think one of the main reasons why justice kennedy grounded his argument in the due process clause enough the equal protection clause was because there was a particular social moral message that he wanted the court's opinion to convey. that is based on the fact that this they mistreat gay people is a mystery same as straight people because there is no rational basis for the distinction. instead, all of the language about marriage allows justice kennedy to make the.that i believe was clearly driving them
throughout this whole analysis, that gay men and lesbians do not deserve to be demeaned in society and that giving them access to civil marriage sends the message loud and clear that they will not be. so it was not enough to provide only a few reasons for why a gay person has the right to marry. he wanted to provide all the he wanted to he wanted to explain the exalted status of marriage in society even though the rhetoric understandably make some people uncomfortable. to him the overriding importance of marriage was gay couples cannot be excluded from that civil institution. that that is the exact opposite of what the court said where there was no connection that could be seen between homosexual activity and family and in his opinion by using the
fundamental right to marriage for the fundamental right to a civil institution that is exalted and valorize in society that is how he made the.that there is a similarity and there is a goodness and there is a respect that goes to all of those relationships. thank you for your attention command i i am looking forward to your questions. [applauding] clicks we cannot pass questions over. you want to go first. >> you go ahead and i will follow you. clicks the one thing. the three dissenters a down
to basically two kinds of issues. one of the dissenters say they are gay. same-sex marriage with the wrong party and i government decided. the second second argument gets for you about. they try to take up with the liberty interest. you stated and justice kennedy stated there was no expressed right to liberty. liberty will sustain you from doing something. nothing was sustaining days that were the blacks for sustaining a marriage. so how do you think kennedy dealt with those arguments? he did try to address the. >> one thing i want to say is, they make a lot out of the 54 decision. there have been a lot. citizens united, bush v gore
the bottom line is sometimes a decisions are 63 and 54 and 72. and that does not make a difference. this is the supreme court. these are the nine justices the been given the responsibility of interpreting the constitution. now, of the defense -- of the dissent ceased -- chief justice roberts dissent is quite different than the other three. that is, he does collect the others say this was not the right entity to decide this question but he did it for somewhat different reasons. the other dissents i we fighting the question of whether the court should put in a substantive right into the war liberty?
justice thomas's entire opinion is about liberty means you can't be shut up in prison, government can't do something to you and it is not does not even mention the cases of an affirmative right to educate your child as you wish an affirmative i do use contraception. rights rights that necessarily interact with government. the reason the reason people were criminalized in the contraception area is it's a crime to use and cello describe which is a public right. they would just essentially be fighting those fights and not really explaining why it should be different now for liberty interest for same-sex couple versus any of the previous cases. cases. justice roberts was somewhat different. he did not say it is completely inappropriate for the court as a general matter to deduce what is a
liberty interest. he did not argue that there is not the fundamental right to marry and that it was wrong for the court to have found -- in 1923 record and a list of fundamental rights even though the case was just about the right to bring up your child. the rights child. the rights of marry had been listed, but the first thing that was used was an leveling. justice roberts was not saying there is no such fundamental right. what he said is, it is beyond the authority of the supreme court to decide that same-sex couples have the same fundamental right. why why would it be beyond the authority of the court? he did that by basically saying that the thing called rights of marry one species, and there is something called right to gay marriage right to
same-sex marriage command that is like another species. so under right to marry you have things like you can't stop people of opposite races marrying, can't say a father who is behind in child support can marry. the fundamental right to marry but you do not have the authority to create this entire new species of marriage call gay marriage. we don't want gay marriage call we want marriage. we just want we just want access to the exact same civil institution. in a way justice roberts was just saying by fiat is a different animal. he did not have to engage with all the reasons that justice kennedy put forward as to why there is a fundamental right to marry because the couples were asking for fundamental right for gay marriage command
that was somehow completely different. clicks let's actually do a follow-up and talk about the geopolitics a little bit. justice kennedy wanted justice kennedy wanted to read the opinion. he was the senior justice have the right to determine those right who would right decision, and sought that have himself. secondly, he wrote the opinion in such a way as to align the five justices who with them to support his conclusions without themselves writing collateral or consenting opinions command i think he did that in part because even though it was a highly divided court he wanted as much unanimity as possible. when one looks at the groundbreaking cases of loving versus virginia or
for that matter brown versus board of education, the board of education, they were unanimous decisions by the court clicks yes. >> and while i did not necessarily make a difference in the legal outcome committed to invade at the court was of one mind and looking at these issues. the court overturned a racial integrity statute first adopted in 1924. anyone who looked around the country knows that racial integrity had not been expected given the one drop rule that had affected how race was viewed commend command individual has one drop of african blood and in some states that person is automatically considered a black. this notion of preserving racial integrity had long
been rendered. it just did not exist. yet exist. yet i think the justices and brown of the justices and loving were trying to convey a sense that the court has changed his view on these important issues which was not available to justice kennedy in terms of getting a unanimous view or even anything close to it. it. so he wanted to have unanimity among the five justices. he also incorporated some social science research into his analysis which is comparable to what the court did with brown, so using social science research as a basis a basis for its decision in this case justice kennedy cited the impact of research showing that children who were raised in same-sex homes benefit from the parental relationship and that that
parental relationship would be strengthened if it was also buttressed by the institution of marriage. so he really went out of his way i think to create as much of a climate showing that same-sex couples and marriage had all of the attending social benefits that flow from heterosexual marriage. >> the reason i raise it is because i suspect that given the nature of the divisions that exist and arguably still exist in the country there will be a predictable backlash around the course decision. the attorney general in texas has issued a statement which said that all county clerks will not be required to issue marriage licenses the individuals who seek him if the court believes that
his or her religious beliefs would be impaired in some way. i mean,, the opposition is already beginning to set up what we have seen in the aftermath of the civil rights act and the brown decision which is an emerging former resistance to the decision and putting in place a legal justification for that effort. the field to have the fear that i think justice kennedy had is to the extent you had concurring opinions you would not have a cohesive and coherent rationale for the change that he was proposing, proposing, and i think he looked to a future of how his decision would be handled in the body politic to emphasize some of the
analysis. do you agree with that? >> i definitely agree. accommodations in response to what i said. i think if there had been five votes for some other opinion, some other legal analysis starting with equal protection and then a big on fundamental right to marry absolutely exulting marriage would have been the case. ginsburg, breyer, so the mayor, kagan choose to come behind one opinion precisely because of the need to convey that to the country as a whole. some decisions have been unanimous. some have not been unanimous and still have been absorbed and taken in by society. in terms of the issue of backlash, there will be some
read it will be odd if there was not. we are still in the midst of social change. but i find it hard to believe that there will be such a backlash that in fact this right will be taken away or that there will be a huge outrage against gay couples. justice roberts tried to say you have hurt yourself. i thought about that when i looked on my twitter feed. i i am a big twitter fiend. you can like the commissioner opposed all the stuff. you know have this link to all the companies that were putting out their brands my goodness, i mean everyone had their thing. this is in the mainstream already.
this is not something with a backlash that will include 60 percent of the population. most of the population is pass this because those corporations would not have been putting out that branding if they felt they would lose a lot of money. it's all over. let me say something else about the non-concurrences in the piece about marriage. i have this piece that ferdinand hunter wrote on the nations blog. she knows this idea. final paragraph speaks for the plaintiff hopefully not be condemned to live in loneliness. imagine what it felt like to join that language for the never married kagan divorce and the mayor without a ginsburg come how much
sharper the edge for a single mom way person or bus driver. and so i do think that in justice kennedy's effort to say we should no longer demeaned gay couples who want to get married there is this possible inadvertent effect on in essence to evaluating those commitments to get married. i don't i don't think that was the intent, but which is why i i was trying to separate out the two reasons that he could have used to establish due process violation or just stop. that really would have been enough because the two others were the ones that sort of said how important over the lowly miss language, the reason that this is the most important relationship.can never enter into. but it was worth it to them to go along so long as there was something like equal protection there.
perhaps the next two questions reflect one of the largest concerns about this decision with respect to religion and the church. one of the audiences ask can a church refused to marry due to religious belief? is the church protected? similarly, why do pastors fear the intrusion into their day-to-day activity command how can we respond that they are missing the.? >> right. okay. they easy part of this question is of course churches are protected from retaining their belief that only opposite sex couples to get married. any priest, rabbi, and a religious efficient who is marrying someone in that religious tradition can say
i am not going to marry you. i am not going to marry two opposite to opposite sex couples. more than that right now there are many rabbis that refused to marry an interfaith couple. they will not marry if you are a jew and the christian's they will not marry you. now, that is obviously discrimination on the basis of race, but they are still given the right to do that the right to do that because the free exercise clause of our constitution, the right to practice your religion is absolutely protective of those activities. and so anyone who talks about churches and rabbis and priests now there is not an issue there. there. what they are actually
talking about and what they have tried the religious groups, sometimes groups sometimes to get embodied in laws although there has been backlash is an individual religious person who is running a restaurant and does not want that gay couple who just got married to come in and be celebrating a kiss each other. they do not want it. it is against their religious beliefs. they don't want to serve the person, baked a cake for the wedding. i i don't want to serve you. well, that has never been pricked permitted in our country. that is what happened after the civil rights act of 1964. >> absolutely clicks it's against my religious beliefs to serve blacks and whites together. the court said sorry because
of course that is a religious belief. a religious belief. a belief can be burdened by its state if necessary to carry out the states purpose. here the states purpose is to ensure someone can walk into a restaurant, photographer replace that is served. >> in most instances where you have identified a business like a photographer or restaurant that refuses to serve, these individuals have licenses which are granted from the public to allow them to operate as businesses in the communities in which they serve. those licenses require you to serve the public interest as defined. obviously you are now not required to provide services to identify criminals if that person is reading law enforcement but as a general matter you are required to provide assistance to those who come
to shop if you have a license granted from the state to provide the support. to support. to make the argument that somehow your personal religious beliefs college may be violated somehow trying to responsibility to the public as a step too far i think that the precedents that were established in the wake of the 64 civil rights act arts, divorce year. julian bond made an excellent analysis, there at the passage of the 64 civil rights act rivers a response of many shops to serving african-americans under title ii of the civil rights act of 1964 was deals with the issue of public accommodations and saying in effect that we expect you to carry others responsibilities. strong enforcement at the very outset from the federal
government and in some instances the states cut off that line of debate. you are seeing now an effort by some to use religious freedom everyone is entitled to have but those religious beliefs cannot be used to drop cannot be used to trump is a cannot be used to trump cannot be used to jump how we are obviously talking a variety of different rates it with a shared interest we have in providing consistent responses on the part of was a public officials he jumped
is not. religious belief and the freedom to exercise are not in conflict, guys nor should we perceive them to be. my concern is that some who believe themselves to be deeply and personally religious should not expect the state to support activities that would permit them to violate the rights of others when they are
dealing in the role of commerce. if in fact you are a religious, a religious, inefficient at a church or synagogue you can certainly deny the marriage to same-sex couples, but if you are operating the civil world in which you are attempting to regulate a behavior in the marketplace that, i think, is a step too far. i think the recognition of the business community that there are interests year that are fundamentally american and that they wish to embrace it seems to me as a good thing and we want to encourage that. i think one of the purposes of this program tonight is to really show that this is not to a nor does there have to be a war of ideas between the religious and those who hold more secular views. they are not in conflict but i do think think there
is some education needed and why i think this is a valuable exercise clicks this is probably the last question for you. how do you feel about sexual discrimination claims under title vii on theory of gender stereotyping to say what effect will it have on commission title vii employment discrimination law? clicks okay. so i'm not actually sure that the case itself will have significant impact. i think that sentence that i read i read this is this is a violation of essentially equal protection will have some resonance but in terms of what the esd has done today from our responsibility is to interpret the words of the statute that congress passed
and after congress passed the 1964 1964 act that said you can discriminate based on sex we early on gun charges, charge from a transgender person who had been discriminated against that said this is because of sex. no, it's not. we got charges from gay people that said this is discrimination because of sex because of the sex of the person that i'm involved with that of getting this morning against. after we said that the core started court started saying it also and had these two rationales. well no, it is not sex discrimination because the employer discriminates against a man who is gay and against a woman who is lesbian. so lesbian. so they treating men and women equally. that is a poor argument then , clearly a clearly a poor argument now command we have