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Matthew Whitaker
  Acting Attorney General Whitaker on Religious Freedom  CSPAN  January 17, 2019 2:01am-3:06am EST

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media industry. later, the pentagon's chief financial officer talks about the department's first-ever audit. acting attorney general matthew whitaker spoke earlier today, at the heritage foundation event on the religious freedom restoration act, which was signed into law in 1993 by president bill clinton. the acting attorney general was followed by a discussion that included jewish, muslim, and christian perspectives on protecting religious freedom. just over one hour. >> hello. welcome. we are delighted to have you here today. this is a particularly important day for me, i remember, 25 years ago being involved in the fight to get this done.
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so, to be here to celebrate with you today is so important. like all of you, i have a deep appreciation for the fundamental freedoms that we share as americans. a great experiment in liberty has thrived through times of war and peace, our nation is governed according to the longest surviving constitution in world history. because of the founders designed our republic to last. to be immune from the passions and partisans and resistant to the schemes of parasitic infections. they enumerated our freedoms so there would be no mistake about where the government was not welcome to tread. principal among these freedoms is our first liberty, religious freedom. that is what we are here to discuss and to celebrate today as we mark the 25th anniversary of that religious freedom restoration act. most of you, here likely understand the circumstances
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that led congress to pass the religious freedom restoration act, and we will hear more from our testing which speaker and the panel that follows, so i will only see us just say a few words about that. the country was very different 25 years ago. a coalition from across the ideological spectrum, including everyone from the aclu to mike farris who is now ceo of alliance defending freedom. came together to bolster freedoms that were limited by an unfortunate supreme court decision. the religious freedom restoration act was passed unanimously in the house of representatives, and 97 to 3 in the senate. boy has times changed. i wish we could get that kind of bipartisan support today for something that is so important like this.
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the political left has actively worked to undercut our freedoms. from its demand that christian and catholic nuns and even the march for life provide abortion inducing drugs in their insurance plans, to attacking the freedoms of small businesses and faith-based ministries to work according to their faith, the left has proven itself is not of freedom for this liberty we are here to deliver today. thankfully, this immigration has reversed a number of previous attacks on the freedoms our founders promised to every american. and we are convinced of the department of justice will defend not ignore the constitution, and freedoms protected under the religious freedom restoration act.
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we are so honored to have with us today acting attorney general matthew whitaker, he understands how important it is to safeguard our freedoms and safeguard the law of the land. prior to becoming acting attorney general, mister whitaker acted as chief of staff to attorney general jeff sessions. he was appointed by the u.s. attorney for the southern district of iowa by then president george w. bush. previously he was a managing partner, and a prestigious law firm based in des moines, iowa, he was also an executive director for accountability and civic trust between 2014 and 2017. mister whitaker graduated with a master of business at
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menstruation, with a doctor and a bachelor of arts from the university of iowa, where he also played three seasons and tight and for the iowa hawkeye football team. please join me in welcoming acting attorney general matthew whitaker. >> thank you. thank you all. thank you for that kind introduction. i am old enough now that people should forget what i've done of the football field and remember what i've done in the political field of washington dc but i appreciate your years of service mckay, and we were talking earlier about your son having worked at the end of justice, and you know how how important it is to all of us who have served there and how special a place it is.
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i want to also thank ed meese, attorney general for being here, he has become a friend and mentor to me when i was chief of staff, and now as acting attorney general tonight, i really i really appreciate him and what he stands for in the conservative legal movement, and in an exemplar of public service, and i am also -- i cannot ever get enough time with him talking about ronald reagan, and what it was like to serve with him and to be a friend of ronald reagan, the person that most made me who i am today was ronald reagan, your service with him as attorney general and in the state of california was just
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really exceptional. i also want to thank jennifer marshall, john malcolm, and especially the panelist today, each one of you brings a unique perspective to today's discussion, but we are all united in our shared values of tolerance and mutual respect. i also want to give special thanks to emily kell, director of the richard and helen devos center for religion, civil society, for organizing this event, over many years as an attorney dedicated to the protection of religious liberty. i also want to take villages before i start my official remarks, i want to take a personal moment to just say how exceptionally well i thought bill barr did in his senate confirmation hearing, i've really always believed that he is the right person to take over the department of justice, and will lead us into the next chapter in the department of justice is history, he comes from the perfect place, or he
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is raising his hand and willing to serve, but does not need the job and that is always a good place to be. so i will be happy to hand him the keys to a well oiled machine, at the department of justice and allow him to move forward with his agenda. for a start, my official remark by wishing everyone a happy religious freedom day. 233 years ago, the virginia senate passed a statute for religious freedom, which remains one of the most eloquent defenses of religious freedom ever written. it states that, quote, truth is great and will prevail if left from herself. truth has nothing to fear unless disarmed of her natural weapons, free argument and debate. the statute protected virginians by being compelled to attend or support any religious service or ministry or from
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being punished because of their beliefs. the statute did not claim that these were privileges were gifts to the people, it says, quote, we declare that these rights hereby asserted are of the natural rights of mankind. the author of the bill, thomas jefferson, considered it one of his greatest achievements. in fact, on his tombstone, it does not say that he served as president of the united states. it says three things. that he authored the declaration of independence, that he founded the university of virginia, and that he authored the virginia statute for religious freedom. when the bill passed, jefferson was in france, as a diplomat, for those of you who have seen hamilton, you are familiar with what did i miss opening the second act. the legislature -- the legislator who championed the bill with a 34-year-old delicate named james madison. within just a few years, madison became the father of
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the constitution, and authored the first amendment. jefferson, madison, and the rest of the founders took great care to protect the rights of religious people in this country. and we look back now, we can see why. because religious freedom has made this country stronger. it is undeniable. every day in america, religious charities feed the hungry. care for the sick and elderly, and give our children a good education. and i will point out as well, they are serving the crisis that we currently face on the border. religious groups are there on the front lines dealing with that situation. people of faith can be found in every walk of life, and in every corner of this land, including my home state of iowa. good citizens of every creed have made contributions that have enriched this nation. that benefits all of us. whether we share their religious beliefs or not. religious freedom makes our country stronger, and that is
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why threats to religious freedom are also threats to our national strength as a people. for more than two centuries, the american people have recognized that. in november, we celebrated a much more recent statute than the virginia statute for religious freedom, we marked the 25th anniversary of the religious freedom restoration act, it codified the strict scrutiny test that the supreme court has famously used in schroeder and yoder. unless it is seeking to compel a further entrance, and doing so by the least restrictive means, it can. under the act religious freedom is not absolute but is protected by one of the highest standards under constitutional law. government is still able to fulfill its purposes, just without infringing on people's rights.
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it is a remarkable thing for any government to impose such a restraint on itself, and it is unique to the american system. we can look at many other countries that do not protect the free exercise of religion and other protections we have, the examples are many. it would have been much easier for the government to disregard the cost on individual liberty, and in all too many countries as i mentioned, that is exactly what governments are currently doing. but, the enactment of rfra was a bold affirmation that religious freedom and the freedom of congress are deserving of protection. even when it makes things harder for the government. this affirmation is even more striking, because it is the result of a consensus, as kay mentioned in the opening remarks, -- rfra was offered by
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the encouragement chuck schumer and passed the house unanimously and was approved in the senate, 97-3. when president clinton signed the law he said it is interesting to note what a broad coalition of americans came together to protect perhaps the most precious of all american liberties. religious freedom. vice president al gore remarks, after he invented the internet, and when you have the national association of evangelicals and the aclu, the traditional values coalition, and the people for the american way, all on the same side, we are doing something right. what a difference of 25 years makes. today, many of the original supporters, including the aclu have changed their minds. in recent years, when some states have attempted to pass their own versions of rfra, they have been met with bitterness, and hostility.
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meanwhile, others have disregarded both the spirit and letter of rfra. they have tried to use the power of the state to make people choose between the following their core beliefs, and being good citizens. even when it is not remotely that necessary. for example, we have seen orders to pay for contraceptives, we have seen a u.s. senator referred to an evangelical christian nominated by president trump as, quote, not someone this country is supposed to be about.". we have witnessed the ordeal of jack phillips in colorado, that ordeal unfortunately is still continuing today. we have seen groups that defend religious freedom, including one that is undefeated in the supreme court of the united states over the last seven years, labeled as hate groups. sadly, there are many more examples that i am sure everyone in this room is failure with, and maybe even is
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a part of a fight for religious freedom. but, i am proud to say this a ministration is doing something about it. we have a president who is standing up for the first amendment. soon after he took office, president trump ordered the department of justice to issue legal guidance to the executive grants on legal protections for religious liberties. in october 2017, about the same time i joined the department of justice as chief of staff, we issued that guidance, which explains the fundamental religious liberties principles in the constitution, and federal statutes like rfra. we have been putting that guidance into action by defending the rights of the american people in criminal and civil cases. under president trump we have obtained 14 indictments and 10 convictions in cases involving attacks or threats against houses of worship, and against individuals because of their religion. under this demonstration, we have indicted 58 defendants and
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in the last fiscal year, we have obtained 30 hate crime convictions. with regards to civil convictions we have gone to court all across america to protect american citizens of a wide variety of faiths and beliefs. we defended parents in montana who claim their children were barred from private school scholarship programs just because they attend a religious school. under president trump, the department has filed five amicus briefs in cases alleging discrimination in zoning law. we have done so on behalf of a hindu temple, a catholic church, and we have followed the lawsuit on our own behalf, on our own behalf of the orthodox jewish congregation, we have settled for cases involving mosques. we got involved in first amendment lawsuits filed by the alliance defending freedom against georgia, when at college, a taxpayer-funded school that allegedly punished a student
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for sharing his faith outside of the designated free-speech zone. all-too-familiar on our nations campuses. all-too-familiar -- recently, and amicus brief was filed defending a memorial regarding soldiers killed in world war i. the memorial was a large cross. built using private funds that stood for nearly 90 years without any complaint. but now, the plaintiffs say that it endorses one religion over another. they wanted to be destroyed, but we believe it should sent -- stand to continue to honor the memory of the fallen, so long ago, on a different continent in the greatest war as it was called. in july, we announced our religious liberty task force which is responsible for making sure that we respect the conscious rights of 115,000 department of justice employees. it is also responsible for
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reviewing instances in which the federal government is disseminating against religious institutions simply because they are religious. which is illegal under the supreme court trinity lutheran decision as many of you are familiar with that case. that review will help us stay aggressive in defending the rights of free exercise in court. we are proud of all of these efforts in the courtroom. but, not everything needs to be decided by a judge. by someone who often times, i say this to my friends, i'm not going to say this about all federal judges, but those who put on the black robe sometimes i have seen, reason and common sense shoot out their years but that's only my personal experience. these cases do not always have to be decided by a judge. in the long run, perhaps, it is most important to uphold rfra in spirit, not just in the letter of law, and not just in
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these court cases. rfra promotes authentic tolerance. because, it makes a solemn promise to the people of this nation that we can find a place for them him a regardless of who they are, and regardless of their personally held beliefs. rfra affirms that good citizenship is open to every american. whether they are religious or not. and above all, it underscores the fact that governments primary task is to protect the rights of all of its citizens. that is why i am hopeful, that we can recover consensus in support of religious freedom that came together 25 years ago. if we don't do that, then we can create a culture -- if we can do that and do do not, then we can promote a culture that creates true tolerance and
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respect for all citizens. and so, as we continue to carry out rfra, i am grateful that we still have a broad coalition of supporters like those of you here today in his room. and i just want to say in conclusion, i hope in 25 years, when we are celebrating the 50th anniversary of rfra, we can all come together, in a truly supportive collaborative fashion, and remember, the virginia legislature and u.s. congress knew, that everyone of faith, and those without faith need to live together in harmony and i'll pull in the same direction so that our country, the united states of america, continues to be the shining city on the hill that president reagan so artfully painted a picture for all of us when he was president, and i just want to say, may god continue to bless the united states of
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america, may god be with you as you go into your day to day struggles and challenges and celebrations, and may god bless the united states of america. thank you all so much. >> is it that good of a speech?
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hello everyone, welcome to the heritage foundation, i am deputy director of the new center for legal and judicial studies, and before i came to the heritage foundation, i worked with senator orrin hatch for 15 years, he was the principal republican author of the religious freedom restoration act, i came to washington 30 years ago just a few months before the supreme court heard arguments in a case titled employment division versus smith. following the decision in that case, our organization helped launch the coalition for the free exercise of religion, and when he signed rfra into law in november 1993, clinton thanked the coalition for what he called the central role they played in
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drafting this legislation, and working so hard for its passage. that coalition grew to more than 70 organizations, and was like none that i've ever known. it included as does our panel today, different faiths, and the american humanist association and the national association of evangelicals, it included americans united for separation of church and state and concerned women for america. it included the aclu and the american association of christian schools, only the most profound and fundamental cause could bring those groups together. cause of religious freedoms. the founders said this was a natural right of mankind. the congress has unanimously declared religious freedom to be a universal human right and presidents have said it is a fundamental human right that
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inherently belongs to every human being. so, when the supreme court in the smith decision devalued religious freedom by weakening its constitutional protection, congress responded with the river -- religious freedom restoration act. which protects religious freedom in two ways. by creating a high hurdle for government to interfere with religion, and by applying that standard across the board. both of these elements are being challenged today, and this is what we are here to talk about. i would like to introduce our panel howard, the founder and general counsel of the jewish coalition for religious liberty, he is an attorney practicing in washington, and received his law degree from university. osmo is adding with extremes working for beckett which is familiar to many of you and is the founding editor in chief of a leg -- wed -- web magazine addressing gender. he is also affiliated with the religious freedom center and was
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director of strategy for the center of islam and religious freedom. she received her law degree from the university of chicago. greg baylor, senior counsel with the alliance defending freedom, where he is director of the center for religious schools, he currently represents 19 nonprofit organizations and related challenges to the birth control mandate of the affordable care act. he received his law degree from duke university. now i will hand it over to my colleague, director of the divorce center for religion and school society. thanks. >> thank you very much, tom. thank you everyone for joining us today. i want to start by asking the panelists to look back, over the last 25 years, as you have all heard, in 1993, this incredible coalition came together, around the idea that we might not agree on who god is, but we all agree that every
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person should be able to practice their religious beliefs without government coercion. those are the members of the coalition, and those in congress who voted for this bill saw the exceptionally high standard of judicial review of government burden on religious exercise as a means of fostering tolerance. amidst argued differences. i would like to address how rfra has impacted the religious communities that you represent and what impact has it had on peaceful pluralism? >> thank you. rfra allows participation in american life without having to explain the intricacies of our religious practices to congress. as we have heard, and implement decision versus smith, the spring court held that exercise of laws only invalidates laws that specifically target religious practices. it does not apply to everyone or incidentally burden religious exercise. exemption from keeping religious
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-- native americans amusing peyote for religious purposes would be unconstitutional but a lot prohibiting most others amusing peyote would be legal. generally applicable laws that apply to everyone and on target religion, you have to obtain accommodations through the clinical process. they have to go to the legislature and explain why the legislature should exempt them from this law, because of their religious practices. that may work very well for the majority of religions whose practices are well known but it is less effective for minority religion. congress is not especially likely to accidentally burden majority religious practices because those practices are well known and well understood. if congress goes after a majority religion it is probably on purpose. therefore the a number of majority religions would not have to seek accommodations very often. but, more likely, this can burden minority religious groups like dudes who have obligations that are less well- known and less well understood by congress. thus, under justice scalia's proposal, members of majority
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faith like dudes are more likely to find themselves in front of congress requesting an accommodation to justify their faith. rfra solves this problem by offering blanket exemptions to laws that unnecessarily burden religious exercise. there is no need to expand your faith to congress on a case-by- case basis, because blanket accommodations are offered. it is important to this has been borne out by the data. minority religious groups use rfra most frequently which should be expected. juice have used -- for example, an air force chaplain brought his case to sermonizing whatever topic you wanted to talk about, the military brought the position that he could prohibit speaking about topics that were not essential to his face. the court applied rfra and said that they had no business deciding what was based on faith, and he was free to talk about whatever topic he wanted to talk about. jew's have also used religious
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liberty laws to protect their rights to build synagogues and schools not withstanding reductive zoning laws, unless they are pursuant to a compelling interest. also kosher foods are rental line and the need to practice their faith in prison. instances where rfra doesn't apply, the spring court has decided that refer -- rfra can only apply to state law, they have to pass their own reference. some states have in some states have not. as we heard in the attorney general, it's become a matter of controversy when states like indiana have tried to pass such laws. in california and animal-rights groups here to protect a local rabbi from performing an annual ritual associated with high holidays and repentance. some rabbis take chickens and donate chickens to poor families as part of the ritual.
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animal-rights group sued under an unfair condition law that is generally likable. dependent leave the rights group was worried that they could compete with the rabbi. the animal-rights group repeated that the rabbis might have a defense but they insisted over and over again, that these cases, california did not have rfra, underscored a victory because they dragged the court process on so long. if rfra had been in place that would not have happened. similar areas can rise in critical importance to american jew's. generally applicable law banning circumcision or ritual slaughter, jew's have a difficult time mounting a defense. the legislature wouldn't say we are banning ritual slaughter or circumcision to go after the jew's, you would need the first amendment would not protect us, this isn't merely a sky is falling hypothetical. some european countries have already moved to ban circumcision and ritual
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slaughter, and in fact, seven cisco tried to ban circumcision. if rfra exist, that would be jew's first line of defense, where it doesn't exist that would be vulnerable. the protection is especially vulnerable for other minority religions. it should be preserved where it exists, and states that don't have them should adopt them without controversy. >> thank you. i will ask that you please hold applause for all the panelists until the end so that we can get through what they would like to say. also i would like to add a comma feel free to address religious land use and institutionalized purchase to the sister statute. >> thank you. so, he mentioned some of the data that bears out the fact that rfra had mostly been used successfully by religious minorities. that is something that i think many people don't realize in this day and age or the. after the very controversial hobby lobby case, where rfra
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for many americans is suddenly all about enabling discrimination by conservative christian's against women and algae the -- lgbt queue individuals. given the assumption, several scholars of religious liberty jurisprudence have dug into the case to see if there is any case to -- truth to that claim. one study by my former colleague luca goodrich showed an empirical analysis after hobby lobby to look at cases specifically in the 10th circuit, and reviewed over 10,000 decisions, focusing on every religious freedom to skate this decision in the last five or in some cases, 10 years. after this very extensive analysis, he found that religious liberty cases are still quite rare, they only make up .6% of the federal docket. and, contrary to predictions that religious people would be able to wield hobby lobby as a trump card, successful cases are even more rare, and there have only been five winning issues within the 10th circuit
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in the last five years, and those pertaining to shari'a, polygamy, eagle feathers, contraception and the 10th commandment. he also notes that despite this misunderstanding, that christians would be the prime fisheries of hobby lobby decision, the data shows that religious minorities continue to benefit the most. another scholar, actually looked more broadly at all cases since rfra was enacted and he found again, that the majority of state refer cases have little to do with discrimination, or sexual morality or the culture wars, and these cases get almost no attention even by scholars in the field. so, whatever else could be said of them, rfra and state refer is -- to stay rfra's have been valuable for religious minorities who often have no other recourse if the law conflict with their most basic obligations. he goes on to list cases a five- year-old native american boy who was told by his public school district that forbade
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boys from having long hair. girls could have long hair but boys couldn't. and then, the court was able to use the texas rfra to grow his hair in accordance with his religious brief. it has also protected a jehovah's witness from having to pledge allegiance to the constitution under the belief that she could only pledge allegiance to god. and also, sick children who were not allowed to carry a small blunt ceremonial dagger, a sikh article of faith, which obligates all seeks to carry the dagger to protect and serve the week. so, the school forced the student to choose between expulsion and prosecution in violation under religious conviction, we can understand is that the school would have legitimate concerns related to carrying a small dagger in school, but given the blindness
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of it and harmless nature of this article of faith, jew was -- rfra was able to use the understanding to more narrowly tailor the solution, and not wielded so broadly. when it comes to most parts, the cult -- post 9/11 contact with an increase in determination, in the last couple years, in particular, and hate crimes against muslims. including was visibly muslim women in headscarves, and these cases, jew provides heightened protection. many religious liberty wins have been in land-use context as emily pointed out. that is important, also, because those have occurred under the religious land use institutionalized persons act, removal from rfra are inherently connected. rfra applied to local
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government, federal state and local, but after the supreme court 9097 ruling, rfra applied only to the federal government, not state or local government. open up the space were religious minorities with research and on their religious practice. so, protecting the preferences of rfra. recently, one of the most prominent cases. in their cubs, and inmate of the arkansas department of corrections he needed the accommodation to grow a beard with religious practice to emulate the prophet mohammed.
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he said he would limit the beer to 1 inch, the prison refused to accommodate that this 1 inch beard would allow him to bring in contraband. notwithstanding the fact that most other prisons in the u.s. allow people to grow beards for both secular and religious regions, they would be able to check a short beard if there is anything hidden in it. so, justice alito wrote the opinion for the majority of the court holds that the prison has violated, the court specifically hobby lobby with that standard for accommodation. that is, an accommodation must be based on a sincerely held belief, that is how hobby lobby came into play with the contract. the land-use contact, with quite a bit of muslim community
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trying to build houses of worship, one notorious example is in murphy and tennessee versus 2012, where it was actually argued in court, that the muslims should not be able to build a house of worship because islam is not a religion, and therefore does not get protections under the first amendment. and it was a pretty bizarre argument, it went on longer than it should have been allowed to, but in the end of the islamic center prevailed. a more recent case in 2017, after five years, 39 public hearings and two lawsuits, the society of basking ridge was finally able to building a mosque. bernard township has refused to let the society begin construction based on the issues of its proposal including the size of the parking lot. these concerns about parking et cetera were largely the cover for dissemination. as the atlantic explains the
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case was a particularly controversial example of the local board is committing against a religious group that wanted a place to worship. while the township cases distinctive, it is in no way unique. religious discrimination in the u.s. often happens in the most providian settings including debate over housing ordinances. 3.25 million damages and attorney fees, 2014, a mosque in bridgewater new jersey settled for 8 million in 2018 a mosque settled for 400,000. so, under the removal, thank you. >> thank you, greg? >> thanks emily for inviting me to produce. in this panel, i enjoy the remarks of michael pennell, you asked us to look back 25 years, a long time. in a sense, my religious liberty practice grew with rfra, it was in 1993 when i
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first heard of the existence of religious liberty litigation and religious liberty advocates, and soon thereafter, joined up with christian legal society in its center for religious freedom, i look back on those days, and i can confirm, as you said, and as mrs. james said, and attorney general whitaker said, things have changed dramatically. i was very surprised when i first started that there were these meetings, that consisted of all the kinds of groups across the religious and ideological spectrum mentioned before, people for the american way, aclu, national association of evangelicals. southern baptist convention, all pulling together, and pushing the boat in the same direction. what i unfortunately witnessed soon thereafter, was a breakup of this coalition. right after rfra was adopted, this coalition hung together to defend the constitutionality of
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the religious freedom restoration act. it hung together to urge the court to adopt robust interpretations of rfra in the courts, one of the first cases was a very unique and odd situation involving a donor to a church who went bankrupt, bankruptcy trustee ironically named christians was trying to get back the donation from the church, represented in a bankruptcy case, and unfortunately, the clinton penetration, which had lobbied so vociferously and effectively for the religious freedom restoration act, initially adopted an understanding of rfra that gutted the statute and drained it of its effectiveness. the coalition, all of these various groups responded, by saying no. and persuaded that administration to change its mind about that case. as was mentioned in the burning
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case, which eliminated rfra the ability to states and local government, which i think as we all know can sometimes be the most threatening governments, with respect to the freedom of religious exercise, that is when the coalition really started to break up, because in the wake of that decision, there was an effort to bring these groups back together, and say we can fix the problem that the supreme court identified, we can identify sufficient sources of constitutional authority, whether it be the commerce clause or section 5 of the 14th amendment, to try again at rfra, that applies to states and local governments. in the short period of time between the adoption of rfra in 1993, and the partial striking down of it in 1997, it truly was a had to be partisan about this, the left end of the spectrum, but had decided at that point, that robust protections of religious liberty posed a threat to the
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advancement of rights. they subordinated their belief in religious liberty to their stronger belief in the advancement of rights. that is why we only have the letter act, which is great i'm glad we have it, and muslims have found it yesterday and it is necessary to use it to indicate their rights, that is short of the christian trinity as well, one of the first rfra cases was asserted right here in washington dc, by western presbyterian church on the west end dc foggy bottom area. they were just trying to feed the homeless. and the district of columbia government said you can't do this, it's a violation of land- use regulations or whatever. this was one of the first to assert a rfra defense to the charge of the district against them. those kind of land-use cases go on even until today, involving christian traditions, just late last year, my organization settled the case against the
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city of laurel maryland allowing all kinds of groups to get together and use the space, meeting space in the downtown center, but not churches. of course, we don't generate tax revenues so that's one of the reason it was necessary for our client to assert a claim in that instance. but, i guess it would be remiss not to identify some of the biggest cases involving christians and the religious freedom restoration act which is of course the contraceptive mandate cases. as you know, i believe all of the challenges to the mandate were christians of some stripe, whether they were roman catholic or even helical protestant. this was a fight where the judgment was unnecessary, there were models in the contraceptive mandates that have broad exceptions for religious plan sponsors, but the previous administration, some say deliberately, picked a
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fight by crafting an extraordinarily narrow religious exemption, and it required all of these uses including many of my clients to make a choice, right, between violating their conscience, and providing their drugs that they think destroy life, or to comply -- disobey the law as it were, and face unsustainable fines every year. one unremarked upon aspect of the case was the practical value that these cases served to the entities that asserted them. there are some that say this was symbolic, this was just about being opposed to the president or something like that, the reality is, that most of my clients instead of facilitating access would have dropped their healthcare plan.
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no option to get healthcare through their employers and would have had to go on to the changes which as many know are not the best option. the same thing with respect to student plans, a lot of my clients are colleges sponsor student plans, they weren't required by law to do that and we saw that, frederick and university of student, they dropped their student health plan rather than comply with this one. unfortunately many of our clients were able to secure judgments under rfra and were able to continue offering their health plans. again, i think to anticipate our next point of discussion, i think the seeds of the challenges we see being asserted against rfra and now, are back in the late 90s, mid- 90s and four years later when it was partially struck down. >> many of the
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she also worked on the hobby lobby case. we will turn to looking ahead to the next 25 years. it has already been discussed, the coalition that formed in 1993. it is broken apart somewhat and some of the groups that were originally involved in passing rfra have adopted the belief that we actually don't want to support the freedom of religion of those people who disagree with us. particularly on certain controversial issues that are been referred to, like contraception and also sexual orientation and gender identity. now we saw in the 115th congress the democratic members of congress introduce the do no harm act which was a significantly limit the
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application when it comes to issues like contraception and sexual orientation and gender identity point one is that the government claims upon citizens , the contraceptive mandate everything is becoming more religiously diverse. if these trends continue, how do you think the challenge is to try and rfra could affect religious freedom? feel free to conclude your comments with any recommendations you have either for policymakers or for the rest of us to keep alive the spirit of rfra. >> i'm confident that rfra will survive the current challenges it faces because americans prefer compromise over coercion. since hobby lobby, critics have increasingly argued that rfra is being used in novel ways to
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oppose third-party harms, in other words they've been claiming that religious people using rfra to harm others. but rfra is only been used in new ways because of unprecedented government intrusion. prior to the obama administration, known could've imagined that the federal government would attempt to force nuns to provide their employees with abortion inducing drugs. the same groups that favored the abortion inducing drug mandate comes forward and say rfra has been used in novel ways remind me of the old joke definition where a person to murder his parents in a drums up on the mercy of the court as an orphan. rfra is about allowing americans of all faiths or no faith to compromise and reach solutions. if a religious pharmacist has an objection to providing abortion inducing drugs, make arrangements with the pharmacist down the street and send all customers requesting those drugs to that store. that is a win-win solution. the customer gets his drugs in the pharmacist does not have to violate his faith.
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repealing or weakening rfra substitutes government coercion for compromising coexistence. imagine the state or law requires every pharmacist to stock every drug and there is no rfra in place. the pharmacist and clients cannot reach a mutually beneficial agreement and the pharmacist must provide abortion inducing drugs. his conscience is irrelevant. that is not just a hypothetical. that is a case that actually happened in washington state. where there is no rfra. there are areas where coercion is necessary but as we heard before that is already part of the law. rfra clearly states it does not provide accommodations to situations where the government has compelling interest in enforcing the law. for example, no accommodation can be granted from laws banning racial discrimination. there is no reason to further weaken or watered down rfra as has been suggested by some of the critics. saying that rfra would not apply in any case for third- party harm as opposed to the significant level of harm obliterate rfra.
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another reason why i'm confident rfra will persevere is that the faces of rfra supporters are much more appealing in the faces of its adversaries. on one side we have a customer who insists a christian baker create a case cake showing sex acts. on the other hand we have a florist that happily serves customers would've required her to attend the wedding if she had a conscious objection. on one side we have government bureaucrats who want to control every aspect of americans lives and on the other side we have a native american feather dancer who wants access to eagle feathers to perform religious rituals. if those are the two sides, i'm confident the americans will choose pro rfra. one way in which opponents in court have gotten around rfra is that the statute says it only applies in cases where religious person is substantially burdened and they
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see burdened to say that courts can look into how important a religious practice is to particular religious observer and say you are only protected if the practices being burdened important to you. what rfra really means is that you have a protection if the government protection for violating your faith is a significant burden burden. if they violate the smallest minutia of your faith or pay 1000 $1 million it is a substantial burden. they can make it clear in court that that language substantial burden is a substantial burden from the government and not from god. >> when i think of everything that is going on right now in society and more specifically in the way it is impacting the perception and attempts to amend rfra, i cannot help but view it in a global context.
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just giving my experience working on international advocacy in other countries on laws, these countries where religious liberty is a matter of life and death and those experiences have given me insight into what a society looks like when the human right to religious liberty is threatened. you say the wrong thing and you find yourself in prison. you interpret your relationship religion different than the mainstream and you find yourself on death row. i have seen remic impatience ramifications because we fail to see the importance of a particular belief or it offended our liberal sensibilities. i realize those two contexts seem very different and maybe a little alarming to make the parallel, but i think the closer he inched to that there is always -- it is problematic. approximating some of the things i have seen overseas.
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this vigilance has motivated my own approach to liberty claims i don't agree with. afraid i picked up founder of the becket fund everyone has the right to be wrong and that is exactly it. we have to protect everyone's right to be wrong and you don't have to agree with them. in order to protect their rights. today the scope of wrong is becoming wider and wider and even more worryingly the attempts to amend rfra punish wrong views with government penalties and i'm worried about this willingness by many americans to give the government more authority and restriction action it does not agree with. while these attempts are coming mostly from the left against the right there are worries and trends on the right that i think are important to mention and these are not any attempts to change the text of rfra , alluded to in the murphy versus burrows context, but an attempt by a number of prominent actors
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to limit the scope of religious liberties to certain religious groups and denied to others, specifically to muslims. i'm referring to is attempt to cast islamic law and religious practices political. there is empirical evidence backing up the fact that lower court judges have also they went half as many times as people of other religious beliefs. there is a social trend that is echoed in many prominent political circles and there is also a worrisome trend in the courts itself and that also bothers me because i think when you think about religious liberties you think about rfra upholding religious liberty for all and specifically having a balancing standard that can moderate fears we may have, whether fears from the left about christian nationalism or
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fears among others about a muslim takeover or whatever the fears may be, the balancing act that rfra provides is there to create peaceful core listen. recommendations, remember there is a balancing standard there no matter what your fears of a religious group are. rfra handles it pretty well. also, some empirical research that howie and i had mentioned before, you might have a certain conception of what rfra does and opens the door for, but in fact empirical evidence makes clear what rfra actually results in. inky. >> so the short answer to your question about what the world would look like in 25 years is of course, i don't know. but i do know that it will be a struggle. i think it will be more difficult than even the last 25 years. some of the challenges to rfra have been hinted at already. we have scholars and litigants
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arguing that rfra violates the constitution, that creating exemptions for religious people constitutes an impermissible preference for religion that violates the establishment clause. whether or not some third-party suffers a harm as a consequence of the rfra driven exemption or not , second, the judiciary itself, not just wrecking down rfra is unconstitutional, but it's interpretation of the element, remember that every court of appeals that adjudicated hhs held that the mandate did not substantially burden the religious exercise of nonprofits that were forced to facilitate access to objectionable drugs. this is a clearly incorrect understanding of rfra but nonetheless, it won the day in all but one of the circuit courts. also compelling interests, it
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judges the authority to count what is a compelling interest and justifies substantial burdens on religious exercise. we need to be vigilant in our court arguments, as well. all three branches of government in a sense reflector have the capacity to undermine and damage rfra. i think this current administration has been a bit of an outlier in its respect for rfra. general whitaker mentioned the executive order that president trump issued in the guidance the department of justice put together. it is remarkable the extent to which the department is saying to itself and to the entirety of the federal government, rfra restrains you . you don't get to do what you want and then defended in court and see what happens. rfra imposes affirmative duty on you, executive branch officials, to make sure you are not substantially burdening religious exercise.
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if you are, to assure that it is satisfying the strict task. that guidance is not set in the constitution or in the statutes. it disappears in the next presidential administration, so while a applaud this administration for its respect and deference and following its duty to comply with rfra i am concerned about the future. of course legislative efforts undermined rfra. emily mentioned the do no harm act. you explained it well. also, the quality act which would was introduced in the last congress which would essentially work a partial repeal of the religious freedom restoration act. those who are subject to the sexual orientation gender the quality act would impose would not be able to assert even a defense. they would not have a chance to get into court and argue that
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their rights have been violated. i think the final threat to rfra and the religious freedom principles that it embodies is the people. i have seen, and many of you have probably seen it as well, the respect diminished respect for religious liberty in the culture in the populace at large. that used to be a unifying phrase. religious liberty had a good brand and really now it does not. that is the problem. as we all know our legislative officials and executive branch officials and judges don't operate in a vacuum. i hate to be -- maybe that sells best make the, but it is not intended to be. it is intended to motivate us to understand with clarity the magnitude of the threat we face and to respond accordingly. how do we respond? we have to start at home. we have to equip our own communities to understand the importance of religious freedom, to understand the theological underpinnings of
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religious freedom within our various faith traditions, and to equip our faith communities to defend religious freedom and to defend their religious exercise. you referred emily to the increasingly diverse religious composition of the united states, and i think that is an entirely correct statement. i am inclined to believe people of faith mostly weigh on one side of the battle and it is this growing class, who are very invested about opposing their worldview on dissenting religious believers and i think that creates opportunity and space for what you see on this panel today which is interfaith cooperation and assistance to one another as each of our respective communities faces challenges to our freedom. thank you. >> thank you.
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we are going to conclude the event that i want to first of all thank the staff of the center and the director for all the work you put into this event and the staff. i want to thank all of you for coming and i think today we have heard some inspiring ideas about how to protect religious freedom, how to rebuild a consensus around rfra, and it is clear that in order to protect religious freedom, we have to protect religious freedom for all. not only for those who may share the same beliefs that we have, and finally please join me in thanking the panelists. on thursday, trump administration don mccann talks
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about deregulation and the future of healthcare law at an event hosted by the american bankruptcy institute. that is live at 915 eastern on c-span three point later, republican members of congress and former campaign staffers speak at a launch event for new york representative stephani, elect more republican women. that gets underway at 1 pm eastern. for the first time in the states history, iowa voters elected women to the u.s. house of representatives last november. both are democrats and both defeated republican incumbents. cindy asked the archer mba from northwestern's kellogg school of management before working in a few state agencies under three iowa governors. she and her husband currently own a digital design firm in the des moines area. voters in iowa's first district, everything can hour, now the second youngest member of
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congress, she previously served two terms in the iowa house of representatives. illinois elected three new members to the house. all democrats. two of them are defeated republican incumbents. sean cask in his biochemical engineer and businessman and was a ceo to clean energy firms early in his career. congresswoman lauren underwood represents illinois 14th district and was a senior advisor at the u.s. department of health and human services during the event of obama administration. she has a masters degree in nursing and public health. representative jesus garcia, who goes by chuy, was elected by voters in illinois fourth district. he has had a career in state and local politics going back to the mid-80s. he previously served as a commissioner and in the illinois state senate and on the chicago city council. he is the director of a community development corporation. new congress, new leaders. watch it al