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tv   Key Capitol Hill Hearings  CSPAN  June 30, 2014 10:00am-12:01pm EDT

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for the job. i would hope the most americans would start thinking that way as well. host: unfortunately, we have to leave it there. is on a mission for political reform at the bipartisan policy center. thank you for being our guest today. guest: thank you. host: that is all the time that we have. please be sure to join us tomorrow at 7:00 for "washington journal." we go now to live coverage outside of the supreme court. we're expecting the final decision in a matter of minutes. [captioning performed by the national captioning institute] [captions copyright national cable satellite corp. 2013] t we will win!ha continues]
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>> as you can see, we're live
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outside of the u.s. supreme court where the high court is expected to hand down decisions into key cases. one deals with the case involving the craft store chain, hobby lobby, at a furniture store in pennsylvania. they are in opposition to certain types of contraception for their employees because it violates their religious beliefs. hobby lobby say they have a number of factors in their favor. they cite the tone of the oral argument that took place in march and the court decision last week, finding that the president overstepped his bounds when he made recess appointments. key court decision being released today is when dealing with the requirements of company employees who are not members of unions to pay union dues. home health-care workers fill it is unfair for them to collect fees from workers who are not union members. aey feel that they negotiate contract for all employees, so they should share the cost.
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these are live pictures outside of the supreme court as protesters and supporters are waiting for the supreme court's decision on the contraceptive mandate case. we will at some point here from attorneys who were involved with the case and some of the principles involved. we also plan to open our phone lines to hear your thoughts and reactions. chanting]
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>> we are the pro life generation! continues]
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will win!ve that we continues] birth controlhey, is here to stay! continues]
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>> it"s a craft store, not a chapel! [chanting continues]
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>> keep your boardroom out of my bedroom! continues] >> separate church and state,
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women must control their fate! continues]
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>> where live outside the supreme court this morning. we are expecting to decisions to be handed down. with the requirement of company employees who are not members of the union to pay union dues. apparently there has been a decision in that case. from the ap, they say that public-sector users cannot collect fees from home health-care users. collecting the fees violate the first amendment rights of non-union members. that is a financial blow to labor unions in illinois and other states.
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the case was brought by a group in illinois of home health-care workers who said they did not want to pay fees related to collective bargaining. they said a compelled them to associate with the union. lower courts had thrown out a lawsuit. the home a decision on health-care law and contraceptive mandate case. that should be coming down momentarily. we also expect reaction to both of these cases. you'll open our phone lines to get your thoughts on both cases.
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>> who is the boss? women are the boss! [chanting continues]
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[cheering] >> take control with birth control! [chanting continues]
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>> health care -- now! [crowd chanting]
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>> women -- in control! black, whiteght, -- health care is a human right! continues]
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>> hobby lobby wins! [chanting continues]
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>> we're going to start a press conference in a few minutes.
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>> keep your boardroom, out of our bedroom! continues] and state! church
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>> my name is kristin hawkins. we are the nations largest pro-life organization. today, we applaud the supreme court. [applause] for making religious freedom -- [indiscernible] wife, as a mom, as a business owner, i am perfectly capable of making my own decision.
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perfectly capable of making my own decision and controlling my life. these drugs have been proven to be carcinogenic. mustbama administration stop treating women as victims of our own fertility. stop spreading the false notion that women are not equal to men. i am equal to men. i am as creative as a human being. birth control and abortion will never make me more equal. thankfully, the supreme court is protecting our first amendment freedom today. no government should ever force a citizen to pay for and distribute life ending drugs and devices. that is exactly what our
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government was trying to do. verywere trying to and the premise of why our nation is founded. religious liberty. we are so grateful. the pro-life students, who are teful.jority, are gra thank you. [cheering] >> as you have heard, outside of the supreme court, the supreme court has decided that corporations can hold religious objections that allow them to opt out of the new health care law requirement that they carry contraceptive coverage for women. thatigh court has ruled profit-seeking businesses can hold religious views under law.
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the obama administration must search for a different way to provide free contraception to women who are covered under objecting company's health-care plans. and must be provided at no extra charge under the health care law in 2010. this case again involves the arts and crafts store, hobby lobby, protecting the rights of private sector companies to opt out of providing certain coverage, if it violates their religious beliefs. they and a furniture store in pennsylvania were both wingtips in the case. we will open a powerful minds to get your reaction to the decisions today. we look forward to reading your response on facebook and twitter.
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>> we will get some reaction now to the decisions handed down today by the supreme court. today, we celebrate the separation of powers in the united states of america. this case is about religious read him. it is about preservation of the separation of church and state, but it is also about -- life. that is why the march for life is here. life in its earliest form as will marvel. it is beautiful and it is worthy of protection. that is why we are here. e included drugs and devices that destroy life in its earliest stages. human life is worthy of protection. that is why we are all here today. we will continue to fight. his is a beautiful celebration today.
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there are hundreds more cases like this. we're not finished and we need to continue, so thank you. god bless america. [cheering] >> hello. i am a businesswoman. i own a business with my husband in illinois. we have been in business for 24 years. lawsuit against the federal government, including another one against the state of illinois. we have two lawsuits. this is a great day in the country of america. to hear this wonderful decision handed down to us, we are very grateful. we have about 80 employees. most are women. taking anhey are anonymous survey and voted on the best place for women to work in chicagoland. a well-known
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business magazine in chicago. it was notell you, because we have contraceptives available in our coffee room. it is because we treat our women authentically, with dignity, with respect. they know that we understand their lives and their balance. we work with them and we are a team. i want to thank all the people who cannot today. i know that running a business is like running a marathon. this hhs mandate -- we as business owners love marathons. like puttingwas brakes on our back and telling us to run anyway. and to be happy about it. we are very grateful. two more comments. they say that bosses do not belong in bedrooms -- thank you! thank you [cheering]
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i don't want to be in their bedrooms, believe me. people who come to work for us, they have a choice before they take the job. we give them the choice. that is where the choice lies. these are our policies. we have 80 happy people. the other thing i will say is that when they face country perception -- when they say they're contraception is not their bos'' business, can they put that in writing? god bless america. >> high, i am communications director of concerned women for america. we applaud the ruling of the supreme court today. [cheers] >> this was never about two families into corporations. this was about protecting and defending the rights of all americans, to run their businesses according to their deeply held convictions.
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we all have stood with hobby lobby, the family, and conestoga woods. we stand with hundreds of other families. plaintiffsf the working in federal courts to stop this mandate were either run or operated by women. it is an insult to women to think that we would ever put free birth control and abortion inducing drugs above freedom and religious liberty. what we saw here today is such a disgrace. for what we continue to fight for with religious liberty at my friend thank you all so much for being here today. i present to you the senior counsel for religious liberty.
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[cheering] >> i am the senior counsel for the becket fund for religious liberty. i represent hobby lobby. today is a landmark decision for religious freedom. the supreme court recognized that american families do not lose their fundamental right to open a family business. this victory is important not just for families like the greens, but also for religious ministries and for all americans who seek to live according to their conscience. the decision was narrow and careful. they ruled that families do not lose their religious freedom when they open a family business. this decision does not grant religious production to large, publicly traded corporations. the court kept the focus where it belongs, on families like the hns andand the ha
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everyday americans who seek to live out their faith. the reasoning was clear and should have been clear to the government too. you cannot argue that there were no alternative means for the government when the government is busy paying for contraceptives and providing alternative means for other people. we do not know what the government will choose to do next, but the greens are free. the government should offer similar protections to religious ministries and television networks asking the supreme court for relief today. women like barbara green and elizabeth hahn fokker their religious freedom and today they won. women will continue that fight. voices are heard, standing up for religious freedom. is is about freedom for all americans, women and men. all americans should celebrate today. thank you. [cheering]
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>> my name is casey maddox, senior counsel of the alliance for freedom. we represent conestoga woods, one of the plaintiffs. >> congratulations! [applause] >> to paraphrase president obama, but we found out today is that religious liberty is the law. religious freedom has not been vanquished.
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we still live in a country where people are free to live out their faith, both in their churches and outside their churches. you cannot be forced into a government created hole, where you're allowed to practice your religious liberty. instead, tickets to impact every part of your life, and that includes your family owned business. this is a critical win for religious liberty around the country. thank you to all of those who have stood with me. the hahn family and the green family. forelebrate today this win the right that our founders fought and died for. thank you. [applause] i am the president and ceo of americans united for life. we would like to start today by saying thank you to the green and hahn family for leading the charge and defending our fundamental american right to religious freedom and freedom of conscience.
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on this july 4, we also celebrate with fireworks. we will celebrate a continuation of freedom of conscience in this country. the supreme court has decisively said that when you go into business in this country, you do not give up your american right to freedom of conscience. this is a tremendous win today fo americans, of any opinion. it is their right to follow their own beliefs and own value system, their core american values will be upheld in this country. we celebrate today. incelebrate with the hahns the greens and we thank them for standing up for freedom of conscience. [applause] >> good morning. i am a lawyer with the family research council. this is a great day for religious freedom. this is one of the most significant religious freedom victories from the court and a
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decade, frankly. what the court said is that basically the obama administration should not overreach again. this is a heavy hand of government. the government went too far. is a good day for freedom and freedom of conscience. i want to say something about women. the political left likes to use the hhs mandate as a cynical war of words. they like to say that if you are for the mandate, your for women. if you are against it, you are against women. i'm here to tell you some interesting facts about women. today is a day for women to celebrate. [applause] cheap political rhetoric, who is taking the time and trouble and the money to go to court to file a lawsuit to stop the mandate? women. [applause]
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like who run nonprofits, little sisters of the poor and other women. also, businesswomen who own family businesses. today is a great day for businesswomen who run family businesses. one third of the plaintiffs in these cases are winning in business -- women in business. thank you, court, for standing up for the rights of women business owners. [applause] and what about the women on the bench? what do they think? if you look, you will find that the vast majority of women judges who have looked at the mandate are against it. they have ruled against it time and time again. far outpacing women on the bench to work for the mandate. what do judges think? they are against it. finally, when you look at a public opinion, do not watch the news.
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look at public opinion, the real public opinion. what do women think? well, they don't like it. more women oppose the mandate in america than support it. this is a good day for women.' the court gave the red light to this overreaching of the government. finally, i want to thank the hahns and hobby lobby, especially, for this long road. they have been chased by the federal government all later the supreme court, just for the right to live and work in freedom. this is a good day for freedom and a good day for women. thank you. [applause] >> thank you. i am with the becket fund and the cap associatio talk about a rebuke to the absurd notion that canning up for the first amendment amounts to a war on women. women do not like seeing their employers over their faith.
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employers also happen to be women. women like the bill of rights. women are driving the opposition to this mandate from the get go. hobby lobby and conestoga woods are both co-owned by women. little sisters of the poor are women too. female justices have voted time and time again to stop this mandate, in some of the most important opinions written by women. that is all behind us because the first amendment and the religious freedom restoration act stand tall. we do not need the court to tell us that this was an unjust mandate. we did need it for an end to the bullying of the employers of these companies and all the other companies that have filed lawsuits. thank you especially to all the women who have been fighting this fight. it has been an honor to work alongside all of you. and every person who gave something did not lose today.
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think you. [applause] >> i am from the independent women's forum. this is a great day. in anyone who believes limited government, religious freedom, and freedom of conscience -- the lawsuit has been wrongly depicting the conflict between women and employers. it was a test to see whether the real question was how far government could go to propel its citizens against their conscience. it was testing whether we should come to a place of religious freedom. apparently, today, we are . this is about much more than contraception. is about empowering women to choose their own health care and salary. and it was about employers, many of them women, not violating their religious beliefs. the hh mandate that we know
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would have had unintended consequences for women and their health. american women already have access to contraception. the government did not need to pursue the case. provides its employers 16 of the 20 fda approved contraceptives. if the government wants to make it more accessible, it can do it without trampling on our convictions. [applause] >> good morning. i am a communications director for the susan b anthony list. our mission is to increase the number of pro-life women in office. in march, i stood here with many of you ladies in solidarity with the families in the present called. our message was simple. religious organizations can not be forced to choose between
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deeply held belief that following the law. thanks be to god that the supreme court agreed with that message and made the right decision today. [applause] our religious convictions, there are some things that we must not do. that is why this is a watershed moment. people will no longer be forced to choose a false dichotomy between their faith and the government. we're so thankful to the families for standing strong. they have had to endure the abuse of the abortion industry, which says that they respect seversity, but in fact endor uniformity and conformity. their message that women want abortion drugs and desire those things above religious liberty is offensive and demeaning to all americans, women and men alike. of faith and conscience have been vindicated.
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this will be a galvanizing moment for the vast majority of citizens who have objected to this mandate in the first place. and the elected and unelected rulers who forced upon us. thank you. [applause] >> hi everyone. i am the spokeswoman with the young american foundation. how awesome was it today? young america is an advocate for a representative for young people. most of you here today -- we know from our polling the young people do not want an interventionist government. they certainly do not want government overreaching. was asked toourt determine whether the obama administration had once again overstepped its authority. it bye limits imposed on the religious freedom and restoration act. guess what, they did.
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this is a case about separation of power. the court ruled in favor of the constitution. on behalf of young people and america's future, it withheld limits of power imposed by the obama administration. the founders protected our freedom. we applaud the court for protecting that freedom and religion's future. >> that wraps up our press conference. we will be here to take your questions or comments -- >> reaction outside the supreme court this morning. the court has handed down a decision in the case involving a mandate of the health care law. abideies are required to certain types of contraception to employees in violation of their religious beliefs. they are citing that corporations can hold religious objections that allow them to opt out of the health care requirement. decision. 5-4
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we will open our phone lines now. the numbers are on your screen. we also appreciate your reaction via twitter and using a #cspanchats. our first call is henry in california on the democrats line. caller: i think that both of these cases --both hobby lobby and union, are so narrow. it is really rather sad that they have become so political. neither one of these cases is a major blow to anything. they're both so narrowly written. it has come to the point where everyone of these really fine legal divisive arguments have
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been turned into a major political argument. they are not political. they're both legitimate questions. in one case, the question is whether a group of people who have a strong religious belief and own a corporation have the right to provide some limitations on the health care they provide. i agree with that ruling. it is still a very tiny group. i do not think it is the camel's nose. in the union case -- i'm sorry that they ruled against the unions. they basically require fees from people on the behalf of negotiators. they did not choose that. they can make the argument that that is probably true. these are both very narrow cases being turned into major political theather, i am afraid. thank you. >> henry mentioned the second case decided today. the public-sector unions cannot collect fees from home
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health-care workers. they object to being affiliated with a union. collectings say that the fees and violates the first amendment rights of those who are not union members. our next call is max, calling on the independents line. caller: i am near sacramento. >> your thoughts about the supreme court decision? caller: i see a lot of discrimination cases coming down the line. if corporations are labeled as people, what our employees? not everybody believes in the same religious faith. and when you start bringing religion in, it holds a lot of discrimination there. people should have the right to whatever they want. it is a moral issue. and i think the supreme court has stepped out of line. >> thank you. david is next in shepherdsville --
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the name of your state? caller: yes -- was then. is runninger who this country, the supreme court or the president and the congress? the supreme court gutted the civil rights act. now they're trying to get into the bedrooms of americans. they have no right to do this. they are stepping over their bounds. it was split 5-4. all the republicans went for the republican agenda. that is absolutely wrong. the supreme court needs to be regulated. there needs to be some rules put down. they cannot overdue something that congress and the president have voted for. they have way too much power. they are the ones running this country, the supreme court. >> the next caller is from reading, pennsylvania.
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what are your thoughts? caller: i have been listening to everybody else's thought, and it really upsets me that they do not stop and think about the basics. you have the right to govern your own life. that is what the founders were all about. and it is the decision that we have. if someone does not want to work for an employer, they have a choice. they can go work somewhere else. that employer should not be forced to give up their religious belief. that is the whole reason that the founders left england and came over here. and i am so proud of the decision that came down. it was slim, by one. but, by golly, it restored my faith that maybe this administration is not going to destroy religion altogether. >> we're getting lots of calls
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on this topic. we want to get as many of you as possible. lindsay is next in michigan. republican line. caller: hello. my name is linda. i just wanted to congratulate the conservatives today. i feel that birth control is just that. it is controlling. have ado not want to baby, you go to the doctor and get on birth control. when they make it hell that once you are pregnant that you can abort the child and obama says that is the way everything should feel -- i think these democrats and these men are delusional. whyst do not understand they are so disappointed that a child might be able to be adopted out. we live in 2014. i grew up in the 80's.
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i went to a free clinic and paid $.25 a month to get birth control pills. i took them responsibly. i did not want to get pregnant. people just -- now we have a pill, it does not matter. it does not matter if you are pregnant. that is not what our country is founded on. these liberals need to take a look at the money that they have spent. allah or obama, it says got. the supreme court did vote against him. just a couple days ago, on a couple things. it is about time. >> thank you for your call. we are looking at live action outset of the supreme court. they have handed down a number of decisions on their last day of this term. we're also looking at your
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facebook reaction. karen says, that decision, what is next? prohibit medical interventions? slippery slope, or just a decision based on ideology? also, this from. . she says the republicans -- have spoken. gina says a step in the redirection. thank you. back to your phone calls. from kansas wilma city, missouri on the democratic line. your thoughts?\ caller: this is a tremendously bad decision. i am 78 years old. i have no need for these things. i am not in the workforce. if jesus camet down today and we crucified him with our religious ideas -- anyone can make a personal decision based on their religious convictions.
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they have no right to impose these on other people. decision --at this there will be a lot of discrimination cases that evolved from this. i'm a firm believer that every child that is born should be a wanted child and have every opportunity to grow up and mature. >> that is next in erie, pennsylvania. caller: it was a bad decision. i do not think they will stop here. the supreme court gives corporations and businesses status. people are no longer free. remember when president kennedy was elected his first roman catholic president. people were fearful he would take his marching orders from the pope. that did not happen. and forcefully, he was assassinated. for people who do not know,
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roman catholics -- i use contraception. most catholics do. the roman catholic church does not approve the use of that. scalia, kennedy, thomas, roberts, and alito, they are all roman catholic. you can see that anthony kennedy, and one of his writin gs, said that he needed to protect women from themselves. he did not think that they could tell women what they need to do with their bodies. really -- itit is will not stop here. >> this in the walkie, wisconsin, republicans line. caller: that is a bunch of baloney. people have to understand that hobby lobby provided a lot of birth control for a lot of
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people. they do not agree with the morning-after pill and other things that terminate pregnancy. we have religious freedom. you do not have to work for the company. this is a blow to obama and ty ranny. what kennedy's issue with this whole law was was that the law was written not by an elective body,but by an appointed which was created. they were making the rules on this. that is what turned him against this. -- see ople,ave people, good pe that have religious backgrounds. they do not believe in terminating a -- abortion is murder. . simple.
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life can start anywhere. >> we will have to leave it there. next is wayne in louisiana. republican caller. that.: i just heard about i'm glad to see that the administration has taken a blow. i am happy that the supreme court guys protected people's r ights. and for not being killed. that the supreme court has done that today. that more people would stand up to the administration for people. this is a huge victory for christians. i support it. i'm very pleased with the outcome. that is what i have to say. >> we have some congressional
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reaction. senator debbie stabenow is a democrat. rulingeted out that this joins a long list of misguided and disappointing rulings by activist conservative majority. we will take one more call. anthony is in las vegas, nevada on the democrats line. caller: yeah. i am just a listener. a lot of people are making this out to be something about how obama is doing. he does not have a right to do that or the judges do not have the right to do this. everybody is trying to work within their power. whether issue here was or not private companies have the right to enforce their beliefs onto their employees. unfortunately, the court has decided that it does have the right to do that. it is really just an empowerment
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of religion to being forced on others. it is not about others protecting their own rights. people work for these companies. if they do not want to do these things because it is against their rights, they do not do it. they cannot force that upon others. >> thank you for your call and beg for all of the calls. the conversation continues on c-span chat. we also are taking your reaction on facebook. go to facebook.com/cspan. we will note about to earlier this year when the supreme court held the oral argument in the case. we will show that you now. it is about 90 minutes. >> we'll hear argument this morning in consolidated cases number 13354, sebelius, secretary of health and human services v. hobby lobby stores, and 13356, conestoga wood specialties corporation v. sebelius. mr. clement?
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>> mr. chief justice, and may it please the court, when a federal government agency compelled employers to provide something as religiously sensitive as contraception, it knew that free exercise in rfra claims would soon follow. in particular, the agency itself provided exemptions and accommodations for the religious exercise of a subset -- >> is your claim limited to sensitive materials like contraceptives or does it include items like blood transfusion, vaccines? for some religions, products made of pork? is any claim under your theory that has a religious basis, could an employer preclude the use of those items as well? >> well, justice sotomayor, the first step in the analysis would be to ask whether or not there's a substantial burden on religious exercise. i do think this case is, in a
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sense, easier than most of the examples that you've brought up because here's one where it's so religiously sensitive, so fraught with religious controversy, that the agency itself provides a certain number of exemptions and accommodations. so that's one way, i think, that you'd address the first step of the question here. >> well, i mean, just take one of the things that justice sotomayor asked about, which is vaccinations, because there are many people who have religious objections to vaccinations. so suppose an employer does and refuses to fund or wants not to fund vaccinations for her employees, what happens then? >> well, if we assume we get past the substantial burden step of the analysis, then the next step of the analysis the compelling interest and least restrictive alternatives analysis.
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and every case would have to be analyzed on its own. i do think in the context of vaccinations, the government may have a stronger compelling interest than it does in this context because there are notions of herd immunity and the like that give the government a particularly compelling interest in trying to maximize the number -- >> blood transfusions? >> blood transfusions. again, each one of these cases, i think would have to be evaluated on its own and apply the compelling interest, least restrictive alternative test and the substantial burdens part of the test. >> so really, every medical treatment. and justice sotomayor is quite right that there are quite a number of medical treatments that difference religious groups object to. so one religious group could opt out of this and another religious group could opt out of that and everything would be piecemeal and nothing would be uniform. >> well, justice kagan, nothing could be clearer than when congress passed rfra congress made a judgment that rfra was going to apply to all manner of federal statutes. and i think what the congress -- >> mr. clement, maybe it seemed clear then, but since rfra, just as before rfra, congress has continued to write into federal legislation specific religious exemptions for some, but not everybody, for individuals, sometimes religious institutions. so if it was all that clear that rfra took care of it all, why
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did congress continue after rfra to pass these laws focusing the exemption on an individual, religious institution? those, as i take your argument, all of those laws and there are more than half a dozen were unnecessary. once rfra was on the books, congress didn't have to do that ny more. >> well, justice ginsburg, i'm not sure that they were all unnecessary. and of course, in a variety of contexts, congress may proceed on a belt and suspenders matters. so i think there's really two different questions. one is when congress passed rfra, was rfra just done with creating other exemptions. and i think the answer to that is no. but i think the question that justice kagan's question brought up is, was congress evident and id congress specifically
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consider whether rfra would apply across the board to all the provisions of 18 u.s.c., or rather all the provisions of the united states code. and congress could not have been clearer that it was passing a statute that it wanted to apply to all preexisting statutes and to all subsequent statutes unless congress specifically provided otherwise. >> you were beginning by giving us a framework for your argument. do i think of this as a statutory case? of course, the first amendment is on the stage at some point here, but i take it you can prevail just on the question of statutory interpretation, and if that is so, are there any statutory rules that work in your favor, that is to say, avoiding a constitutional question or how do we think about this case, primarily as a tatutory case? >> obviously, one of my clients has before you right now a free exercise claim and my other client has a free exercise claim that's live in the lower ourts. so those issues are
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preserved. but i, think, as your question points out, this court really, first and foremost, can decide this on the basis of the federal statute, and the ashwander principles of constitutional avoidance seem like they would be sort of fully applicable to the court's consideration of that question. and then, of course, the normal principles of statutory construction would certainly point you to the answer to the first objection the government raises, which is do persons include for-profit corporations because -- >> mr. clement, isn't this a special kind of statute? because this a statute that specifically refers back to a body of constitutional law. it basically says we want to get right back to the place that we were with respect to religious claims before employment division v. smith. and so we have it's not you know, it's a statute that directs us to a body of constitutional law. that body of constitutional law is, i think, very different from the one you portray in your brief. it suggests that accommodations should be made sometimes, but rarely, and subject to a to a balancing analysis, not to a compelling interest standard in
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the way we would use it for, ay, race discrimination. so, you know, what's the response to that? >> well, first, justice kagan, let me take a little bit of an issue with your premise and let me try to responsive to your question anyways after i do that. how i'd like to take issue with your premise is that when congress first passed the statute rfra, it talked about free exercise as defined in the court's cases. and then at the time that it passed rluipa, which is a later statute, it actually confronted some lower court cases that had limited rfra and tried to impose a centrality requirement. and congress didn't want that. it didn't want to take all the baggage of the pre-smith free exercise cases. so it actually amended the statute to broaden it so it now protects any exercise of religion. so i would take issue with your premise that rfra simply picks up everything that ever happened pre-smith. >> well, there there's another
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respect in which this, even as originally enacted, does not track the preemployment division v. smith law. that is to say, the compelling state interest test in the prior cases was never accompanied by a least restrictive alternative requirement. that was an invention of this of his law. >> i think that's fair, justice scalia. one of the things that you run into if you try to sort of get at this statute the way that justice kagan is suggesting is that not everybody exactly agreed as to what the pre-smith case law was. you described the pre-smith case law in your opinion in a certain way. justice o'connor described the pre-smith case law in another way.
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so it's a little bit difficult to try to say, as justice agan's question would suggest, that rather than just apply the statute as written, we should really sort of just go back and apply pre-smith laws if this were -- >> well, it is applying the statute as written. the statute as written this not a question of legislative history the statute as written points back to pre-smith law. it says -- that's what we mean. >> well, you're right, justice kagan, in the purpose part of the statute it says -- what we mean to do here is basically restore the pre-smith law. but it also accompanies that purpose statute with operative language. and the operative language, which i think this court should apply, as justice scalia suggests, applies broadly to any exercise of religion by any person and then suggests that the relevant test is substantial burden with the burden on my client as to the substantial burden part of the test. and then it's -- >> mr. clement, this was a law that was passed overwhelmingly, both houses of congress. people from all sides of the political spectrum voted for t. it seems strange that there would have been that tremendous uniformity if it means what you said it means, to take to cover profit corporations, especially in light of there was an effort
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to adopt a conscience amendment, a specific conscience amendment in 2012, and the senate rejected that. that that amendment would have enabled secular employers and insurance providers to deny coverage on the basis of religious beliefs or moral convictions. it was specifically geared to secular employers and insurance providers. nd that that was rejected. >> well, justice ginsburg, i would suggest to the ontrary. the reason that there was such unanimity behind rfra in the first place is that efforts to limit to just certain subclasses, subsets of religious freedom claims, were rejected and sort of everybody in congress got together and said, all right, you have some claims you actually want to be vindicated, you have some claims you want to be vindicated, we'll vindicate all of them. and if we're going to look at any legislative history as shedding light on this, then i would suggest you look at professor laycock's brief, which goes into great detail about the legislative debates involved in that led up ultimately to the
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passage of rluipa. and when congress was trying to pass a broader statute, the rlpa, the religious liberty protection act, the issue of the statute's application and rfra's application to for-profit corporations was squarely put at issue by the nadler amendment. and that amendment was rejected and the house report that demonstrates the rejection of that amendment could not be clearer that they understood that for-profit corporations would be covered. now, in fairness, what they understood is that we were probably talking about in the real world a relatively small set of corporations like an incorporated kosher market or kosher deli of the kind that this court had before it in the crown kosher case. and so i think it's you know, we can talk about the extent and how you'd apply these principles to exxon, but i think that's just something that's not going to happen in the real world. it is no accident that the claims that you have before you in these cases are brought by small closely held corporations that have firmly held religious beliefs.
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> but, again, mr. clement as justice ginsburg said, this was a very uncontroversial law. your understanding of this law, your interpretation of it, would essentially subject the entire u.s. code to the highest test in constitutional law, to a compelling interest tandard. so another employer comes in and that employer says, i have a religious objection to sex discrimination laws; and then another employer comes in, i have a religious objection to minimum wage laws; and then another, family leave; and then another, child labor laws. and all of that is subject to the exact same test which you say is this unbelievably high test, the compelling interest standard with the least restrictive alternative. >> well, i don't say that. i think congress said that. but to be as responsive as i can o your question, the parade of horribles that the government
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offers you ought to sound familiar, because if you look at that parade of horribles social ecurity, minimum wage, discrimination laws, compelled vaccination every item on that list was included in justice scalia's opinion for the court in smith. and justice o'connor responded to that in her separate opinion and she said, look, you've got to trust the courts; just because free exercise claims are being brought doesn't mean that the courts can't separate the sheep from the goats. now, whatever -- >> well, she had an understanding of how the court worked pre-smith that was a kind of sherbert v. verner yoder understanding, which was we did a balancing, we looked at the government's interests, we took those very seriously, especially to the extent that there was harm to identifiable third parties and that it fell on an identifiable third party. that was basically you could not get an accommodation for that kind of harm. >> well, what she said and whatever the merits of it as a matter of constitutional debate isn't relevant. what i think is relevant is that congress clearly preferred one side of that debate and thought courts could handle this. so then the question becomes -- how do courts actually apply this test? and i don't think applying the
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test to recognize this case, where i think the government has an incredibly weak case on compelling interest and least restrictive alternatives, which they almost don't want to talk about at all, is going to endanger any other statutes. and if i could talk about specific -- >> well, could i ask you this, mr. clement. in all the years since rfra has been on the books, has any of these claims involving minimum wage, for example, been brought and have they succeeded? >> justice alito, very few of these claims have been brought. very few of them have succeeded, and that's notwithstanding the fact that all of these statutes we're talking about apply to employers generally. and it and none of those claims have been brought or they haven't succeeded notwithstanding the fact that the government concedes that sole proprietorships and partnerships and nonprofit corporations are all protected by rfra. now, millions of americans are employed by proprietorships, partnerships, and nonprofits. so if these statutes really were on a collision course, i think we would have seen the collision already.
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>> well, with respect, mr. clement, i think that that's probably because the court has had a different understanding of what rfra does and the kind of analysis that it requires courts to perform than you're arguing or in this case. that if your argument were adopted and there was a strict scrutiny standard of the kind that usually applies and a least restrictive alternative requirement, then you would see religious objectors come out of the woodwork with respect to all of these laws. and because you say that there and i think this absolutely right when you say it that you cannot test the centrality of a belief to a religion, you cannot test the sincerity of religion. i think a court would be, you know their hands would be bound when faced with all these challenges if your standard applies. >> well, justice kagan, a couple of thoughts. first of all, i mean, it's not like this court has never had a rfra case that it applied the standard on the merits.
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and in the o centro case, this court applied something that very much felt to the government at the time as being strict scrutiny. but if this court -- >> well, it was a religious organization. >> it certainly was a religious organization and it's a separate question as -- >> this what's different. i mean, all along the earlier cases dealt with individuals and they dealt with religious nstitutions. >> well, if i may, justice ginsburg, there's two separate questions. there's a question about how to apply the test if it's applicable in a particular case, and i think o centro is the starting place for guidance on that. your question also brings up the separate question about the coverage of the statute. and as to that, i think the place to start is the statute itself, which broadly provides coverages to persons. that is not an incidental term. it's a term that picks up additional context through the dictionary act and specifically pplies to all corporations, to joint partnerships, to societies. >> how does a corporation exercise religion?
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i mean, i know how it speaks and we have, according to our jurisprudence, 200 years of corporations speaking in its own interests. but where are the cases that show that a corporation exercises religion? >> well, justice sotomayor, those cases i mean, i'd start with cases like lukumi or o centro, which all involved corporations, and nobody thought it was particularly problematic there that the plaintiffs before the court were artificial entities. nd i suppose you could take -- >> well, but they were really arguing about things that affected their membership, not them as a corporate entity. >> well, i'm not sure that you can so easily divide the two, and we can talk about how it is with corporations generally. you understand how the corporation has certain beliefs or -- a scienter requirement. the courts every day deal with issues of trying to figure out what kind of intent or motivation a corporate entity has. >> so the dissent in this case, in the tenth circuit case, said
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how do we determine when a corporation has that belief? who says it? the majority of hareholders? the corporate officers? the is it 51%? what happens to the minority? and how much of the business has to be dedicated to religion? 5%? 10%? 90%? just assume not a business like yours you picked great plaintiffs, but let's assume -- >> let's assume just a business that sells 5% of religious books, doesn't play christmas music, doesn't give off works on sunday, you know, does nothing else religiously. >> right. and, justice sotomayor, i think he way to approach those cases
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would be the same basic way you approach other questions of corporate intent or corporate motivation. you look to the governance doctrines, if any of this put at issue. and i think that's really a critical question, which is ultimately, i think this line of questioning goes to a question of sincerity, and if some large corporation asserts some claim that's going to save them lots of money, i would think that the government in those kind of cases is really going to resist the sincerity piece of the analysis. in this kind of case -- >> that's the most dangerous piece. that's the one we've resisted in all our exercise jurisprudence, to measure the depth of someone's religious beliefs. >> to be clear, this court's ases have always distinguished between the sincerity inquiry, which the court has allowed, and the centrality inquiry, which it suggested is inappropriate. but sincerity has always been a part of this court's cases. >> i thought more importantly
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was whether a burden was substantial or not. that we've never acceded to the person claiming a religious exemption, a belief in how substantial the burden might be. >> right. this court has not questioned that. the thomas case, i think, puts as common ground the idea that you don't really second-guess he person's the person's belief, but you can contest sincerity. it is there is case law in this. you know, you have people who are arrested in possession of large quantities of marijuana and they assert that they belong to the church of marijuana, and those cases do get litigated and they get rejected. and there's a lot of different ways to -- >> is there is there a different way of looking at it, the eeway? in u.s. v. lee, we said, "when followers of a particular sect enter into a commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity." so isn't that really the answer, that we've never considered a for-profit corporation as exercising religion?
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>> well, let me let me take on lee first. and i mean, that's obviously the two lines of lee that are the government's favorite two lines in lee. but lee starts with a substantial burden inquiry, which is where most of these sincerity questions go. and lee definitely says that there is a sincere religious belief and a substantial burden on religious exercise. so the two sentences that you're quoting come in the compelling interest analysis of the case. and i think lee does stand for the proposition that in the tax context, it's going to be very hard for somebody to bring a claim that satisfies even the demanding compelling interest, least restrictive alternative test. >> well, that's an interesting question, because the briefs on both sides here are written as if the penalty for not having a health insurance policy that covers contraceptives is at issue. but isn't there another choice nobody talks about, which is paying the tax, which is a lot less than a penalty and a lot less than the cost of health
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insurance at all? these employers could choose not to give health insurance and pay not that high a penalty, not that high a tax. >> well, just to put this in concrete terms, for hobby lobby, for example, the choice is between paying $475 million per year penalty and paying a $26 million per year coverage. >> no, i don't think that that's the same thing, mr. clement. there's one penalty that is if the employer continues to provide health insurance without this part of the coverage, but hobby lobby could choose not to provide health insurance at all. and in that case hobby lobby would pay $2,000 per employee, which is less than hobby lobby probably pays to provide insurance to its employees. so there is a choice here. it's not even a penalty by in the language of the statute. it's a payment or a tax. there's a choice. and so the question is, why is there a substantial burden at all?
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>> well, just to be clear, we were talking about the same thing. so the option, the choice, is between paying a $475 million a year penalty and a $26 million a year penalty. that's what hobby lobby faces. o $2,000 per person -- >> no, between paying $2,000 per employee per year if hobby lobby does not provide -- >> that's $26 million. >> you know, hobby lobby is paying something right now for the for the coverage. it's less than what hobby lobby is paying for the coverage. there are employers all over the united states that are doing this voluntarily because they think that it's less. >> i thought i thought that part of the religious commitment of the owners was to provide health are for its employees. >> that is true, mr. chief justice. it is also true that this -- >> well, if they want to do that, they can just pay a greater salary and let the employees go in on the xchange. >> exactly, which is, by the
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way, why comparing the $2,000 penalty to the cost of the health care is a false it's a alse comparison. >> it's not called a penalty. it's called a tax. and it's calibrated and it's calibrated >> she's right about that. >> and it has been treated for some purposes as a penalty. and i think for this purposes, it certainly feels punitive. and if i could finish the thought about why it's a false comparison, the 2,000 penalty to the cost of the health insurance, is that it's going to very much hurt hobby lobby if all of the sudden it doesn't provide health care to its employees. and in order to compensate for that, it would have to increase the wages. and i think it would be worse off as a result of this. but if i could also -- >> well, let's say that that's right. let's say that they have to increase the wages a little bit. i mean, still we are talking about pretty equivalent numbers. maybe it's a little bit less; maybe it's a little bit more. but this not the kind of thing that's going to drive a person
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out of business. it's not prohibitive. it's like the thing that we talked about in braunfeld where we said, you know, maybe if the store can't stay open 7 days a week, it makes a little bit less money. but so be it, is what we said. >> no, i actually think what it's like, your honor, with all due respect, it's like the five dollar penalty enforcing the rohibition in yoder. and what this court says, it's one thing if you don't have a direct government prohibition on a religious exercise or a mandate that somebody do something that violates their religion. in those cases, which is like sherbert and is like braunfeld, then you have to look at the substantial pressure, and it becomes a little bit more of a loosey-goosey analysis. but when you have a government law that specifically says you must do something that violates your religion and it's enforced with a penalty, and with all due respect i think $2,000 per employee is a penalty. >> but mr. clement, it's not saying you must do something that violates your religion. it's giving you a choice. you can do this thing or if this thing violates your religion you can do another thing. and that other thing is approximately the same price as the thing that you don't want to
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do. >> i don't think it would be the same price at the end of the day. i'd also like to point out how this -- >> well, of course it wouldn't be the same price at the end of the day. if they deny health insurance, they're going to have to raise wages if they are going to get employees. >> absolutely. >> it's absurd to say that, you know, it comes out of nowhere. >> absolutely, your honor. and by the way, this $2,000 penalty is very much a double-edged sword for the government, because you're trying to -- >> but why is that a problem? let's assume that the cost of providing insurance is roughly equivalent to the $2,000 penalty. how is the employer hurt? he can just raise the wages. >> may i just put a footnote on his. i thought the average price of providing insurance for a single person is $4,000, and it's $12,000 for a family for a family. so the 2,000 tax that's what it's called is to help the
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overnment provide subsidies to people on the exchange that don't have employer insurance. so it's a tax because it's it is to do exactly what your client wants, to get the government to supply the contraceptives, not the insurance companies. >> here's the problem with this way of looking at it, which is to say whatever it costs per employee to get this, this health care, that's something that right now hobby lobby is paying whatever it's paying them, plus it's, you know, imputed into that is the idea that they're getting their wage and they're getting health care insurance. if they take away the health care insurance, they are going to have to increase the wages to ake up for that. and they're going to have to pay the $2,000 penalty on top of it, lus they're going to have to violate their own interest which s, we actually we believe it's important to provide our employees with qualified health care. >> ok, the last is important. but just assume hypothetically
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that it's a wash, that the employer would be in about the same position if he paid the penalty and the employer -- pardon me, an employee went out and got the insurance and that the employee's wages were raised slightly and then it's and that t's a wash so far as the employer are concerned, other than the employer's religious objection, but just on the financial standpoint. can we assume that as a hypothetical. then what would your case be? >> i think my case would be that in that case the government might be able to sort of support itself on the compelling interest. i think there would still be a substantial burden on their exercise. but again, this all turns on issues that the government hasn't put in issue. this case hasn't been litigated n this particular theory, so i
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think i'd love to have the opportunity to show how by not providing health insurance it would have a huge burden on my client and their ability to attract workers, and that in fact would cost them much more out of pocket. but that's not been the nature of the government's theory. >> can i ask -- >> there was a point made earlier, and i think you didn't mean to say this, that provision of health care is not part of their religious belief. covering their employees for health care, that is not a religious tenet, right? >> no, it actually is. again, it hasn't been the principal theory on which this case has been litigated. but see, if you go back to the complaints and you go back to our briefs, you know, it's part of the religious beliefs that both the hahns and the greens have. they think it's actually important -- >> but, mr. clement, you're not saying, are you, that their religious beliefs mandate them to provide health care? i thought that you were never making that claim. >> i didn't have to make that claim in the course of this litigation. what i'm pointing out, though, is for purposes of the substantial burden analysis, it is perfectly appropriate to take into account that the 2,000 the $26 million in fines they would pay would not be the only thing that they would lose out if they are on that horn of the dilemma. they would also lose out all the additional wages they would have to pay, and they would be in this position of not offering health care, which is something they believe is important for
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their religion as well. >> you know, i'm sure they seem like very good employers. and i'm sure they want to be good employers. but again, that's a different thing than saying that their religious beliefs mandate them to provide health insurance, because here congress has said that the health insurance that they're providing is not adequate, it's not the full package. >> well, with respect, what congress has said is that this kind of plan is not appropriate for a non-grandfathered plan. but if we're going to talk about the government's compelling interests here, which i think has got to be part of the analysis, then i think the grandfathered provisions of this statute really are devastating or the government's argument that it has a compelling interest. when the government pursues compelling interest, it demands immediate compliance. it doesn't say, "get around to it whenever it's convenient." i can't imagine congress passing title vii and saying, "stop discriminating on the basis of race, unless of course you have a preexisting policy that discriminates on the basis of race, and then you can keep it as long as you'd like." it is fundamentally inconsistent ith a compelling interest -- >> analysis to have this kind of grandfathering. >> that example, you know, initially title vii did not pply to any employers with
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fewer than 25 employees. and then gradually, congress brought the number down because congress realized that there were going to be transition issues and that some time was needed to make sure that the compelling interest, you know, should be applied uniformly cross all employers. >> here's, respectfully, why i don't think that that works, which is i think the question whenever there are exemptions in the statute is to ask yourself, do the exemptions undermine the compelling interest that the government asserts. there's nothing inconsistent with an interest in prohibiting employment discrimination to say we're going to focus on the people who actually employ the most people and therefore can engage in the most discrimination. it's quite a different matter, and i don't think anybody would think that congress would pass a title vii that said, "hey, as long as you have a preexisting discriminatory policy, you're allowed to keep it." that doesn't seem like it would be consistent. >> counsel, your attorney one of the attorneys below on behalf of your clients admitted that the grandfathered policies weren't going to be around very long because any change to an existing policy and he said these changes happen on a yearly
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basis. and we already know from the government's statistics that it's up to 40% now have grandfathered out. your own client changed its policy, and that's why it's not grandfathered. and he changed it to drop contraceptives it was covering. >> well -- >> and so my point is, since when does a transitioned grandfathered exemption and one that everybody knows will have to change, because premiums by definition will change or copays will change, something is going to change it's a very short transition period. since when does that prove that he need is not compelling?
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>> with all due respect, it's not necessarily a very short transition period. and your references to copays and premiums is precisely on point, because the government, through its regulations, has allowed grandfathered plans to make changes to the copays as long as they're indexed to medical inflation. now, if you have a transition -- >> and we'll break away from the trial for a brief pro forma session. >> the house will be in order. s. the clerk: the speaker's rooms, washington, d.c. june 30, 2014. i hereby appoint the honorable chris stewart to act as speaker pro tempore on this day. signed, john a. boehner, speaker of the house of representatives. the speaker pro tempore: the prayer will be offered by our chaplain, father conroy.
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father conroy: let us pray. gracious god, we give you thanks for giving us another day. in this moment of prayer, grant to the members of this people's house as they meet with their respective constituents the gifts of wisdom and discernment that in their words and actions they will do justice, love with mercy, and walk humbly with you. please keep all who work here for the people's house in good health that they might faithfully fulfill the great responsibilities given them in their service to the work of the capitol. during this week when so many americans come to our nation's capitol to celebrate the fourth of july, may they be molest blessed with good health -- blessed with good health and good will and we all celebrate the glorious experiment of paragraph tisspaive democratcy. may all that is done this day
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be for your greater honor and glory. amen. the speaker pro tempore: pursuant to section 3-a of the house resolution 641, the journal of the last day's proceedings is approved. the chair will lead the house in the pledge of allegiance. i pledge allegiance to the flag of the united states of america and to the republic for which it stands, one nation under god, indivisible, with liberty and justice for all. pursuant to section 3-b of house resolution 641, the house stands adjourned until 12:30 p.m. on thursday, >> we'll have live coverage of legislative business when
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members return tuesday, july 8 here on c-span. and now, back to the supreme court oral argument in a case decided today that determined the owners have the right to opt out of providing health care funds for certain contra session septions. the court decided 5-4 and we will rejoin the oral argument with remarks now by justice kennedy. >> just before your time starts
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to go too fast, how would you suggest that we think about the position and the rights of the of the employees? and you can have hypotheticals about the employer makes them wants to make them wear burkas and so forth. that's not in this case. but in a way, the employees are in a position where the government, through its healthcare plans, is, under your view, is allowing the employer to put the employee in a disadvantageous position. the employee may not agree with these religious beliefs of the employer. does the religious beliefs just trump? is that the way it works? >> well, no, it's not just the way it works, justice kennedy. and i actually have four things i'd like to say about that, if it's possible. one is, i think the first thing about third-party burdens is you have to ask where are they coming from. and if the third-party burdens are coming from an employer i mean, an employer right now can put some burden on their rights because they have to listen to religious music or whatever. that's not as serious as a burden that's coming directly from the government. so that's one principle to think about. another principle, and this more of a detail, but i think it's important, is that to the extent you take into account third-party burdens, you take those into account in the compelling interest part of the analysis. the government has an argument that somehow third-party interests go into the substantial burden part of the analysis, where we bear the burden. and we don't think that's right at all. the third-party >> but, mr. clement, you made the analogy to rluipa. and the one thing that has not been mentioned up till now is the establishment clause. the court was very clear when it came to rluipa, which you said is similar to rfra, that the accommodation must be measured so it doesn't override other significant interests. and that was true of sherbert nd that was true of yoder.
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the and the cutter case, and this court made it very clear, that the accommodation has to be balanced and you have to take into account other significant interests. > right. but that actually brings me to my third point, which is those other significant interests that carry the most weight have to be independent of the very statute that's at issue in the case and that the party seeks an exemption from. so if you think about the caldor case, there the court was concerned with the third-party burdens on, say, an employee who had a seniority right to take the weekends off. so he or she had an independent right to take the weekend off, and the government policy was coming in and displacing this. >> i'm not sure that squares with lee. the statute created the right to social security, and there the court said you can't deprive employees of a statutory right because of your religious beliefs. so lee is contrary to the point you're making. >> there, too, i have to respectfully disagree, because if you remember the facts of lee, lee is brought not just by the employer, but by the
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employee. so the particular employees there don't have a beef with hat he's doing at all. and i think when they're talking about third-party burdens there, what the court is really talking about is the burdens of everybody else who contributes into a system where uniformity, o use the court's words, was indispensable. and so if i could, though, i think, just to illustrate why it's sort of double counting to count the mandated issue here as being what gives the burden to the third party or the benefit on the third party. imagine two hypotheticals. one is congress passes a statute and says i have to destroy all of my books, including my bibles. another statute, congress comes in and says i have to give all of my books, including all of my bibles, to you. now, in the second case, i suppose you could say that a rfra claim somehow gets rid of your statutory entitlement to my bibles, but i don't think, since
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it's the very benefit that we're talking about that's at issue there, i don't think i think that really is double counting and i don't think those two hypothetical statutes should be analyzed any differently. the other thing, though, about burdens, and i think it should go this the fourth point that should go into the compelling interest test -- >> i mean, mr. clement, isn't that just a way of saying that you think that this isn't a good statute, because it asks one person to subsidize another person. but congress has made a judgment and congress has given a statutory entitlement and that entitlement is to women and includes contraceptive overage. and when the employer says, no, i don't want to give that, that woman is quite directly, quite tangibly harmed. >> well, justice kagan, i think you could say the same thing about my bible hypothetical. but i do have one last thing to say about burdens. and i do think when you think about impacts on third parties, not all of these burdens are created equal. and that, too, i think is borne out in this court's cases.
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and the most relevant factor is, is there some alternative way for the government to ameliorate the burden. and i think about two types of, kind of accommodations, if you will. you get sort of title vii with a very narrow accommodation. and then you have conscience clauses that allow medical providers, including for-profit medical providers, not to provide abortions. now, each of those has a burden on third parties, but i would respectfully suggest they're different. in the case of the employee who's been subject to racial discrimination, even if they can get -- another job, that racial discrimination is a unique injury to them that you can't remedy unless you tell the mployer, don't discriminate on the basis of race. now, in the context of the conscience clause, if a woman can't get an abortion from her preferred provider, that's surely a significant burden on her. but we don't view that as trumping the conscience clause, because she can get the abortion through another mechanism. here, as your question rightfully highlights, all we're really talking about is who's going to pay for a subsidy that the government prefers. this not about access to the contraception. it's about who's going to pay for the government's preferred subsidy. and i think in that context, there are ample alternative ways to address any burdens on third parties. and that goes right to the least -- >> it would make no difference if it were there are 20 fda-approved contraceptives, all of them covered by the ealthcare act.
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>> i think -- >> you picked out, in one case what, three, and the other case four? uppose the employer says contraceptives all together are against my religion, so i'm not going to give any contraceptive coverage. >> well, obviously, justice ginsburg, i didn't pick these out. i mean, my clients and their religious beliefs identified these as problematic. there are certainly -- >> but your argument, it seems to me, would apply just as well if the employer said no ontraceptives. >> i think that's a fair point, justice ginsburg, and the government's own accommodations, where they offer them to religious groups and religious employers like nonprofit hospitals, also applies to whatever the religious beliefs of that provider are. so if they extend to all 20, then the exemption's applied to all 20. if they only extend to four, then the exemption applies to all four. >> are there ways of accommodating the interests of the women who may want these particular drugs or devices without imposing a substantial burden on the employer who has the religious objection to it? >> there are ample less restrictive alternatives, your honor.
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>> what are they? >> and i think they all flow from this fact that this ultimately about who's going to pay for a substitute -- >> those are alternatives that you're asking the government to incur or the person to incur. there isn't an alternative that doesn't put a cost on someone else. >> well, it's funny about this particular mandate because the government's position is this actually a cost-free mandate; that whatever you pay out in contraceptions, you're going to make up in not having to pay for other coverages. and so one alternative, one less restrictive alternative is what's done in the accommodation for nonprofit employers like hospitals, where basically they tell the insurance carrier or the plan administer that you ick up the cost for this and then essentially it'll be cost
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eutral from you. but i don't think there's anything sort of sacrosanct, if you will, about having the government pay for its preferred subsidy as a less restrictive alternative. and that's essentially what the government does for those employees who have employers. if those employees -- if the employer doesn't provide healthcare, those employees go on to the exchanges with a subsidy from the government. now, they can do the same thing for objecting religious employers. they just have chosen not to. if i may reserve my time. >> thank you, mr. clement. general verrilli? >> mr. chief justice, and may it please the court, the touchstone for resolving this case is the principle justice jackson articulated in prince v. massachusetts. as he said, "limitations which of necessity bound religious freedom begin to operate whenever activities begin to affect or collide with the liberties of others or of the public. adherence to that principle is hat makes possible the harmonious functioning of a society like ours, in which people of every faith live and work side by side." >> that's a statement that is inconsistent with rfra, isn't it? he whole point of rfra is that congress wanted to provide exceptions for the religious views of particular -- including proprietors, individuals. >> no, mr. chief justice, i don't think so at all.
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in fact, the although i was of course, i was referring to justice jackson's words for their wisdom because it wasn't the opinion of the court. ut see, jackson -- >> yeah. but the wisdom you cited is the idea that you don't have imposed, on the basis of religious beliefs, exemptions or limitations. and it seems to me that was the whole point of rfra, to tell the courts that that is exactly what you should do unless the exception satisfies the strict scrutiny test. >> well, but i think, well, unless it satisfies the pre-smith standards under the establishment clause. but i do think that the exact same point -- >> it's more than pre-smith. >> i take your point -- >> plus -- >> i take your point about less restrictive means, your honor. >> ok. >> but the exact same point that justice jackson made in prince, i submit, is the point that this court made unanimously in cutter. it's not it's that when you are analyzing what is required under rfra, the court must take account of the way in which the requested accommodation will affect the rights and interests of third parties. >> well, is it your argument that providing the accommodation that's requested here would violate the establishment clause? >> it's not our argument that it would violate the establishment clause. but it is our argument that you in any rfra case, including this one, you have to consider the impact on third parties, because
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otherwise, you will be skating on thin constitutional ice. and so justice kennedy, you asked about principles that that surround statutory construction. avoidance is one of them. and that was why the court unanimously in cutter said that in every rfra case when you're considering an accommodation, you have to weigh the effect on third parties. and that -- >> where is that in rfra? i mean, what factor of rfra do you fold that in under? is that part of the compelling state interest requirement or substantial burden requirement? where is it in rfra? >> i'd like i think the answer is that it could inform every operative provision in rfra. we have said that it should inform the court's interpretation of who counts as person. >> if they wanted you to balance the interest of the religious objector against the interest of other individuals, they made no reference to that in rfra at all. > well, i --
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>> they said unless the government has a compelling state interest. >> and the compelling and certainly compelling interest analysis certainly does require consideration of the interests of third parties. of course, what the court what the congress said in rfra, in explaining how the compelling interest test was to work, was that it was to strike a sensible balance between claims for religious liberty and overnmental interests. and, of course, lee is one of the pre-smith cases that provides the governing law. and i would submit is really the only case from this court in which the request for an exemption under the free exercise clause had the effect of extinguishing a statutorily guaranteed benefit. because in lee, had the employer gotten the exemption from providing social security, the consequence would have been that the employees would have been disqualified from receiving ocial security benefits. >> but that wasn't the basis for denying the claim. the basis was that the government has to run a uniform system that applies to everybody. >> i disagree. >> and you can't argue that here because the government has made a lot of exemptions.
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>> i first of all, i disagree with respect to lee, that one of the points that the court made i'm happy to talk about
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them. i'm happy to talk about our compelling interest at length. the now, the my >> well, if you could start with the question of whether the ompanies in this case have a right to bring rfra claims because they're for-profit corporations. you argue that they can't. >> that's correct. >> now, why is that? is it -- is it your position that there's something about the corporate form per se that is inconsistent with the free exercise claim? >> no, because, obviously, churches can bring claims. >> all right. but is it your argument that there's something about engaging in a for-profit activity that is inconsistent with a free exercise claim? >> yes. and if i could walk through the let me, if you don't mind, just walk through the analysis on -- >> well, were the merchants in the braunfeld case engaged in for-profit activity? >> yes. >> so there isn't anything inherent in -- > but i think -- >> in participating in a
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for-profit activity that's inconsistent with corporate form, is there? i'm sorry, with a free exercise claim. >> yes. but i think the relevant question is what did congress think it was doing when it enacted rfra in 1993? what kinds of claims did it think it was -- >> well, what is it about -- >> justifying? >> a for-profit corporation that is inconsistent with a free exercise claim? do you agree with the proposition that was endorsed by one of the lower courts in this case, that for-profit corporations must do nothing but maximize profits, they cannot have other aims -- >> no, not -- >> including religious aims? >> no. but here's how we look at it. at its core -- >> i'm sorry, general. you answered yes to braunfeld. it was jewish merchants, but it was the merchants themselves -- >> individuals. the individuals, yes. not the corporation that was going to be jailed. it was a -- >> yes, that's right. >> criminal prosecution. >> i understood justice alito to be asking me not about the corporate form, but about the activity. and when you have an individual, you have an individual. it's a person. >> so whether it was a merchant that was a corporation or not was irrelevant. it was that the individual was -- >> that's -- >> going to be jailed. >> that's correct. >> it was an individual making a profit, right? >> certainly. >> he was running a business for a profit, and that was the point of justice alito's question, right, which i think you understood. >> and i did try to answer it,
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yes. but i but let me say, i think the relevant question here is what did congress think it was doing in 1993? and i think the answer to that has to be in, you know, we understand the dictionary act provides a broad definition of person, but the dictionary act doesn't define exercise religion. and the operative statutory language is exercise person's exercise of religion. and so you can't look to the dictionary act to define that. but congress told you where to look. it told you to look to the pre-smith case law -- >> and why did it tell -- >> to define that. >> why did it say that? it changed the definition at the time when rluipa was adopted, did it not, to eliminate the reference to the first amendment; isn't that right? >> yes. but it but the difference there was to say it didn't want courts to get involved in the entangling enterprise of deciding what was a central belief versus what was -- >> well, it says free exercise. and didn't it also adopt a provision in rluipa saying that that the exercise of religion was to be interpreted in the broadest possible way?
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>> well, i think it said something more precise than that, which was that it was to be interpreted not to be confined only to central religious tenets. >> no. didn't it say didn't it say the term "religious exercise" includes any exercise -- >> yes, includes any exercise of religion, but it doesn't define what that is. it just says you don't draw a line between centrality and something that may -- >> no. but there is another provision that says that, "this chapter shall be construed in favor of a broad protection of religious exercise to the maximum extent permitted by the terms of this chapter and the constitution." >> right. and it but with respect to what exercise religion means, it said don't draw lines between centrality and noncentrality. it didn't go beyond that and tell you what it means. and what rfra tells you to look to is pre-smith case law. and in the entire history of this country, there is not a single case in which a for-profit corporation was granted an exemption on -- >> not a single case in which it was denied exemption, either. all you're saying is -- >> well, lee -- >> that there are no cases. >> well, lee was certainly a case in which a for-profit enterprise was denied an
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exemption. braunfeld was such a case. gallagher was such a case. >> not on the ground that it was a for-profit enterprise. there is not a single case which says that a for-profit enterprise cannot make a freedom of religion claim, is there? >> right. there is not a single case -- >> right. >> holding that. except that in lee, it was critical to the court's analysis that mr. lee and his business had chosen to enter the commercial sphere. >> isn't that a merits question, general? i mean, i totally understand that argument as a as an argument about the merits. i'm not sure i understand it as a threshold claim that this that the claim is not recognizable at all. >> right. well, let me i do want to move to the compelling interest analysis, but if i could make one point in response to your honor's question, that the court's got to decide what person -- a person's exercise of religion means. and that it seems to me that it would be such a vast expansion of what congress must could have hought it was doing in 1993,
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when it enacted rfra, to say that for-profit corporations can make claims for religious exemptions to any laws of general application that they want to challenge. i do you know, mr. clement says, well, you don't have to worry about anything other than small, tightly knit corporations like the one at issue here. i take the point of the appeal of a situation like this one. but the way in which he suggests that you will be able to distinguish this case from a case in which a large corporation comes in or a public ompany comes in, is that you will have more grounds to question the sincerity of the claim. but that raises exactly the kinds of entanglement concerns that this court has always said you should try to avoid. >> well, that's his argument for distinguishing it. but there are others, including the fact that it is more you avoid all of the problems with what to do if it's a, you know, there's a 51% ownership of the shareholders, if you simply say that it's in this type of chapter s corporation that is closely held.
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whether it applies in the other situations is a question that we'll have to await another case when a large publicly traded corporation comes in and says, we have religious principles, the sort of situation, i don't think, is going to happen. >> but even with respect to these companies, your honor, what are you going to do if there's a dispute between let's say there are three shareholders a dispute between two in the majority and one in the minority? you're going to have to get yourself involved the courts will have to get themselves nvolved in all kinds of -- >> whoever controls the corporation. whoever controls the corporation determines what the party -- >> and then and the minority shareholder will say, well, this under state law, this an act of oppression and this -- >> well, that's a question of state corporate law. it's not a question of who can bring an action under rfra. could i just raise eight courts of appeals, every court of appeal to have looked at the situation have held that corporations can bring racial discrimination claims as corporations. now, does the government have a position on whether corporations have a race? >> yes. we think those are correct and that this situation is different. >> so that so that a corporation does have a race for purposes of discrimination laws.
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>> no, not that the corporation has a race, but that corporations can bring those claims. but you're not interpreting in that situation, all you're interpreting is the word "person" in a statute, not exercise of religion, which is what makes it different here. >> so those cases involve construction of the term "person"? >> yes, but only "person." >> so the person the corporation can bring as a person a claim of racial discrimination. >> that's correct, but not exercise of religion. that's the difference. but let me, if i could, we think that part of the problem here and the reason we make the argument we do at the threshold about why you ought not recognize claims under rfra for-profit corporations is that they are going to predictively give rise to the kinds of issues you have in this case in which the exemption is going to impose a burden on third parties or extinguish rights of third parties, employees or others, and that that really can't be what congress was thinking about. but even if you -- >> if you say they can't even get their they can't even get their day in court, you're saying something pretty, pretty
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strong. >> and i understand, but if your honor disagrees with me if the court doesn't agree with this position at the threshold, the same considerations with respect to the harms of third parties definitely play into the compelling-interest analysis. in fact, under rfra, the standard, the precise standard of the statute says the government must meet is that it must show that the application of the law to the particular parties here, conestoga and hobby lobby, is in furtherance of the government's compelling nterest. that's the test. so the question here is whether having hobby lobby and conestoga provide this coverage is in furtherance of the government's interests in ensuring that this kind of preventive service coverage is available and, in particular, the contraceptive coverage that's included within t. >> is it your position that part of the compelling interest here is that you have to protect the integrity the operational integrity of the whole act? >> it is part of our argument, absolutely. and but it but there is in
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addition to that, much more -- >> does that mean the constitutionality of the whole act has to be examined before we accept your view? >> well, i think it has been examined, your honor, is my recollection. >> but with respect to but with respect to there is a articularized interest here in that what we are talking about is a question of whether 14,000 employees and their families get access to this contraceptive overage. >> you have exempted a whole class of corporations and you've done so under your view not because of rfra. >> so let me let me go to that -- >> now, what kind of constitutional structure do we have if the congress can give an agency the power to grant or not grant a religious exemption based on what the agency etermined?
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i recognize delegation of powers rules are somewhat more abundant insofar as their enforcement in this court. but when we have a first amendment issue of this consequence, shouldn't we indicate that it's for the congress, not the agency to determine that this corporation gets the exemption on that one, and not even for rfra purposes, for other purposes. >> and, your honor, i do think that it was appropriate for the agency, in exercising its delegated authority here, to take into account the special solicitude that under our constitutional order churches receive. and it's important to understand, and i want to walk through the this question of exemptions very carefully because i think there's a lot of confusion here that needs to be cleared up, that all that the all that the government has done is say that churches, because of that special solicitude, which the court recognized in hosanna tabor, churches get an exemption. the nonprofit religious organizations don't get an exemption. there's an accommodation there provided, but that accommodation results in the employees receiving access to this to the contraceptive coverage, so that doesn't diminish the
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government's compelling interest. the tenth circuit and my friends on the other side have relied on this idea that employers with fewer than 50 employees are somehow exempt. >> but you gave this exemption, according to your brief, without reference to the policies of rfra. what were the policies that you were implementing? >> well, with respect to -- as i said, with respect to the churches, it was the special solicitude that churches receive under our constitution under the first amendment. but with respect now, with respect to the employers 50 and under, it's just not right to say that there's any kind of an exemption. if they offer health insurance, they're subject to exactly the same per employee, per-day penalty as larger corporations, exactly the same risk of labor department enforcement, exactly the same risk of an erisa suit by the plan beneficiaries. there is no possible way to look at the statutory scheme and conclude there is an exemption there. >> grandfathered plans? >> yes. the grandfathered plans.
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>> what about the -- let me talk about -- well, just before you so one thing i'd like you to address, the dispute arose with mr. clement about how long they were going to be in effect. can you make a representation to us about how long the grandfathering is going to be in effect? >> i can't give you a precise figure as to there's a clear downward trajectory. there's significant movement downward every year in the numbers. there's every reason to think that's going to continue. i can't give you a precise time when that is going to be -- >> can you give me an approximate time, if not a precise one? >> i can't give you a representation of exactly how low that number is going to go and exactly how long it's going to take. but i think what you're talking about is a period in which that number is going to go to a very, very low level over a several year period. >> well, if you can't tell us, and i don't fault you for not being able to tell us, when the grandfathering is going to end, shouldn't we assume in our analysis that it is current and, as far as we can tell, not going to end? >> no. i don't that's right, your honor. nd i think let's look at this,
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if we could, in toto. that with respect to grandfathering, it's to be expected that employers and insurance companies are going to make decisions that trigger the loss of that so-called grandfathered status under the under the governing regulation. >> isn't it true with respect to the grandfathered plans that the regulations required immediate compliance with certain requirements, but not with preventive care requirements; sn't that right? let me read you what hhs said in the regulation -- "with certain particularly significant protections, particularly significant protections, congress required grandfathered health plans to comply with a subset of the affordable care act's health reform provisions. on the other hand, grandfathered health plans are not required to comply with certain other requirements of the affordable care act; for example, the requirement that preventive health services be covered without any cost sharing."
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so isn't hhs saying there, quite specifically, these, in our view, are not within this subset of particularly significant requirements as to which there must be immediate compliance? >> well, the question would be whether there's a compelling interest in compliance with these requirements. and i'd like to make two points in response to your honor's question. first, with respect to the issue of delay, which i think, mr. chief justice, your question first, with respect to the issue of delay, which i think, mr. chief justice, your question raised, and my friend on the other side has put a lot of weight on, i'd refer the court to the ada. i don't think anybody would doubt that the americans with disabilities act advances interest of the highest order. but when congress enacted that, it put a two-year delay on the applicability of the discrimination provision. >> well, isn't that because you're talking about building ramps and things like that? >> no. no, your honor. there's an even longer delay with respect to those kinds of provisions, but it's just a basic prohibition of discrimination two-year delay, and no one would doubt there's a compelling interest here. and with title vii. my friends on the other side have said, well, this different because there's so many more people who are going to not have this coverage under the grandfathered plan

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