Participants: Lincoln Steed (Host), Todd McFarland
Series Code: LI
Program Code: LI000207A
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00:22 Welcome to "The Liberty Insider."
00:24 This is the program that brings you up-to-date 00:27 news, views, information, 00:29 and most importantly discussion on religious liberty events 00:32 in the United States and around the world. 00:35 My name is Lincoln Steed, editor of Liberty Magazine 00:38 and my guest on this program is Todd McFarland, Esquire, 00:43 Associate General Council of the General Conference 00:46 of Seventh-day Adventist and of course my friend, 00:48 because we work very closely together on Liberty Magazine 00:52 and your council and an author on occasion for Liberty. 00:57 But since you're a lawyer, since you know law 01:00 and I'm gonna thumb into you now 01:02 and then and I'm sure I will be corrected, 01:04 but the Supreme Court is very important for us 01:07 working in the religious liberty areas. 01:09 You know, many of their pronouncements 01:13 have huge ramifications for religious liberty. 01:16 Well, what's your general take on the present court overall 01:21 and what they've revealed about 01:23 the directions they're taking on religious liberty issues? 01:26 Well, I will start it with a sort of a disclaimer. 01:29 There's no-- you know, 01:30 I live and work in Washington DC area. 01:32 There's no end of people who like to think 01:34 they know what Supreme Court is doing 01:36 and read the opinions and parsed and say, 01:38 we don't necessarily use this language 01:40 and you know we're going to do this 01:42 and that, you know, and claim to be experts, a story. 01:46 Well, we're part of that group. 01:47 Well, yes to some extent. 01:50 There was case a couple of years now 01:52 maybe about a year ago called Hosanna-Tabor. 01:55 It was a case that had to do with whether or not 01:57 there was something called the ministerial exception 01:59 and it was about the school teacher 02:00 who have been fired and they claim 02:02 that was for religious reasons 02:03 and whether she could make her claim against the school. 02:05 Now this is very important case. Very important case. 02:08 We had-- I mean, it is probably 02:09 since I've been working 02:10 the most important religious liberty case that's come up. 02:12 I'm glad you said that. 02:13 And the most important probably in a generation. 02:15 So before this we had a meeting of interested religious groups. 02:20 I mean every body was represented there. 02:22 The Catholics were there, Baptists were there, 02:25 Mormons were there, scientology was there, 02:30 evangelicals, Jewish groups were there, 02:33 I mean, everyone was represented there 02:34 and we were trying to coordinate 02:35 with those are Amicus group. 02:37 Which is these briefs that we're gonna file with the court, 02:39 'cause everyone's talking about-- 02:40 But like it's a friendly encouragement to the court by-- 02:43 Right, in explaining our position. 02:45 There were people there who had had, 02:47 who had current Supreme Court justices, 02:50 who had work for them as clerks, 02:52 I mean, not as clerks, as associates in their law firm, 02:54 I mean, so this was as a plugged in group as you can imagine. 02:57 So we were talking about how this may come down. 03:00 And they didn't know or understood. No one knew. 03:02 They thought we might win 5-4, maybe 6-3. 03:05 The Supreme Court came down with a 9-0 opinion. 03:08 So when you say what is the court's view? 03:10 I don't know. Nobody knows. It's a guess. 03:13 But, you know, generally in Hosanna-Tabor 03:15 being example the Supreme Court 03:17 has been recently fairly friendly 03:19 to the issues of religious liberty. 03:20 Well, I'm glad you say that because, 03:22 yeah, I don't claim they know their demand 03:23 any more than anyone else. 03:25 But I differ from some people 03:26 because I haven't yet seen them 03:27 as a looming threat to religious liberty. 03:30 I think by and large 03:31 they're fairly conservative in the sense of but, 03:34 you know, they don't just reach out 03:36 and do wild stuff except citizens united like me. 03:40 People disagree on that. 03:42 But generally on things that relate to religious liberty, 03:45 I think they're fairly cautious 03:47 and I don't see them as the major problem. 03:50 They are not testing religious liberty 03:52 in any consistent way that I've seen. 03:55 It will be--It will be interesting to see. 03:56 So I defend them by and large. 03:57 Right now we have a new issue coming up to, 03:59 the next big issue in the religious liberty 04:01 the Supreme Court's gonna have to deal with is 04:03 this contraception requirements 04:04 and so you know the Affordable-care-act, 04:08 a.k.a. ObamaCare. 04:10 Every one kind of uses that now, 04:11 Obama embraced, so its now. 04:13 Yeah, he said he even likes that. 04:14 Right, he likes to tell them 04:16 so it's not being majority over partisan here. 04:17 Requires a court contraception insurance 04:20 for employers or such type. 04:21 And the question is whether or not religious organizations 04:24 could get a exemption for that 04:26 and then also whether secular organizations 04:28 that have religious owners and directors 04:31 whether they have religious liberty right. 04:32 And this is all in the courts. 04:34 And that case is eventually 04:35 going to make it up at Supreme Court. 04:37 It will be a very telling decision, 04:40 because it puts two things in conflict. 04:42 It puts women's right issues 04:44 in conflict with religious liberty rights. 04:46 Now, my particular view on this is well 04:48 that the imposition on religion-- 04:50 on women's rights is very small and the minimums 04:53 and very narrow where as the imposition 04:55 on the religious liberty is much greater. 04:57 But how the court comes on that is gonna say lot about 05:00 where they come down on religious liberty. 05:01 And you don't think you're gonna extrapolate 05:02 from what they've already decided on ObamaCare? 05:06 Well, no, I think that you know, 05:09 the decisions as far as where or not the affordable care act 05:13 was constitutionally is really a different question 05:15 than, than the religious liberty issues. 05:17 And they saw it more as a, as a taxing issue? 05:20 Yeah. That's how it came down was that, 05:23 you know, of course that was 5-4 decision 05:25 where Justice Roberts switched at the last minute, 05:27 he sets every indication and said-- 05:30 I think he just wanted to-to have his cake 05:32 and eat it too, that's my point of view. 05:33 That this was a tax, but now that issue about 05:36 whether the Affordable Care Act was constitutional 05:38 and those decisions that came down last term 05:41 is really different than the religious liberty issue. 05:42 But he just told me that they weren't willing 05:44 to tackle it head on. 05:46 That--so I don't think they would 05:48 commit any landmark type decision on it 05:52 if they are this tentative early on. 05:54 No, and here's how you got to look at it. 05:56 I mean, you don't put everything in context 05:57 which is to say for the Affordable Care Act, 05:59 which is a sweeping mob that defects you know-- 06:03 Nobody that I've ever read or heard from 06:05 admits to having read at all. 06:07 Well, it is. Yeah, it is that. 06:08 But it is a huge one, has a lot of components. 06:11 The religious liberty exemption 06:12 that certain groups are seeking is a very small part of it. 06:16 I mean, if this is the Venn diagram of it 06:18 and it's just little bitty circle up here in the corner. 06:22 That has very little effect on the laws as a whole. 06:25 So it's not like that you're being asked to invalidate 06:27 the Affordable Care Act or really even make it 06:29 non applicable to a large group of people. 06:32 And isn't there religious liberty exemption 06:34 that would mostly apply, I would think to groups 06:36 like the Roman Catholic institutions, 06:38 healthcare institutions. 06:39 Couldn't the court or the law deal with that 06:44 apart from how they define or redefine the healthcare act. 06:48 Absolutely. They can deal with the exemptions 06:50 and other rights that already exist. 06:53 So I don't think they have to-- It's a very small part. 06:54 It's up or down on the healthcare. 06:56 No, no, not at all. 06:57 And keep in mind for some I mean, 06:59 for somewhat like the Catholics object 07:01 providing all parts of Affordable Care Act 07:03 which is say both contraception and what's known as plan B. 07:08 A lot of organizations like Hobby Lobby 07:10 and some of the for-profits evangelical 07:12 do not have a prominent standard contraception, 07:14 standard oral contraception injection. 07:17 That's like plan B they view as being sort of 07:20 what's they refer to as an abortifacient 07:22 something that causes an abortion. 07:23 Now, medically there's a big question 07:25 about whether that's just medically right. 07:27 In other words, just for you viewers plan B is a-- 07:31 it's the same, it's an extra dose 07:34 so to speak of the same contraception pills 07:38 that woman take on the regular basis 07:39 and it can, up to I think 72 hours 07:41 after intercourse to prevent pregnancy. 07:43 And the question exactly how that works 07:45 whether it stops is an abortion 07:48 or just stops fertilization is medically 07:50 when that apparently still up in the air. Yeah. 07:53 I wouldn't myself-- I mean, 07:54 I wouldn't call it abortion in the classic sense 07:57 but all of these, all of these two side battles sides kick in 08:02 then it becomes very emotional. 08:03 It becomes very emotional, it becomes very charged. 08:05 And you know, of course, keep in mind to some extent, 08:07 you know, while there may be medical answers to this. 08:09 You know, people's personal religious views are their views 08:13 and it really isn't for us to say no, you are wrong. 08:15 Well, that's right. 08:16 And thanks for bringing it up 08:18 because we sometimes fail to say, 08:19 doesn't it matter whether your church held this 08:22 as far as United States and religious exemptions 08:25 that usually if you have 08:26 a deeply held conviction, isn't it? 08:30 Yeah. Anyways, and it is-- 08:33 It's your belief, it doesn't even have to be connected 08:35 to any religious structure person. 08:37 Absolutely and in knowing for those religious organizations 08:40 or those groups that they have these views, 08:42 I guess I mean, you know, 08:43 medically you can disagree with them. 08:45 And there is a medical answer that can be had there 08:47 and that has some informative. 08:48 But you know, ultimately if these groups 08:50 and these organizations feel 08:52 that this violates their religious belief. 08:54 You know, it isn't appropriate 08:55 for the government to say no, it doesn't. 08:57 Now, the government may say 08:59 even if it does violate your beliefs, 09:00 we are still going to you know, require you to do this. 09:02 I mean, that's appropriate in sense 09:04 but you can't really tell people that no, 09:06 their beliefs aren't being violated. 09:08 I'm glad we are having this discussion 09:09 because I've shared on other programs before 09:11 my views on the battle between 09:14 the Roman Catholic Church, most recently and ObamaCare 09:18 and they're taking on the administration. 09:21 And I'm not overly sympathetic 09:23 to what they were trying to do 09:24 because I saw it as more of a political move on both sides. 09:29 And the issues like state aid 09:31 to church run operations kicked in, 09:34 I don't think it was all that it appeared to be. Right. 09:36 But beneath all of that there is what you're talking about. 09:39 There is a matter of conviction 09:41 and a faith view and it shouldn't be just-- 09:44 I might have just missed-- I like to talk about that, 09:46 I like to talk about that for a minute 09:48 because you know when this debate was going on, 09:50 you know, as one of the people 09:51 that helps guide the Adventist church 09:53 on where our stance on this issues is, 09:55 there was a lot of pressure for us to make statements 09:57 and join briefs and so forth and we're still looking at that, 09:59 that may come down as time. 10:01 But there is two things going on. 10:02 There is a legitimate religious liberty interest, 10:04 which is to say, you know, catholic organizations 10:06 being required to pay for something 10:08 they believe to be sinful is a problem. 10:10 But on top of that, a lot of the people 10:12 who had religious objection on this 10:14 also had political objections 10:16 both to the current administration 10:18 and Affordable Care Act. 10:19 And so those two things 10:20 were nearly getting melted and confused. 10:22 It came together in a very dangerous way I think. 10:23 They did. That brought us some way. 10:25 And very personally, and you know, 10:26 as an Adventist church we have people 10:28 really unlike many other churches 10:30 we have people all over the political spectrum. 10:32 We are very diverse when it comes to political beliefs. 10:35 I mean have Republicans, may be Democrats, 10:37 you know, independents etcetera. 10:39 And--as Seventh-day Adventist church 10:41 has never thrown and slot him. 10:42 Right. And we have to--And we have-- 10:45 With any political group. Absolutely. 10:46 And we stay and so you know, 10:48 how do you talk about a legitimate religious liberty 10:50 interest without its being viewed 10:52 as jumping into a political fray. 10:53 It was a very difficult thing to do 10:56 and it was very unfortunate 10:57 that this religious liberty interest 10:59 has gotten tied up into a political debate 11:01 because a lot of the people think 11:04 that the organizations are objecting this 11:06 are really just trying to make political points. 11:08 Now having an Affordable Care Act 11:10 upheld by the Supreme Court, having President Obama 11:13 getting elected to a second term, all that sort of 11:15 turns the temperature down on the political side. 11:18 And because, you know, 11:20 there's a less of a political debate we could make. 11:21 Well, I think that they were in a rush 11:22 because this is my statement, 11:26 you can challenge it if you like it 11:27 and our viewers will have their views, 11:29 but I think by upping the pressure 11:32 when they did, the Catholic Bishops, 11:35 I think were wanting to draw Catholic veto 11:38 support away from the administration 11:41 and away from Democrats to vote Republicans. 11:44 I saw that is, that's what you are saying to politics. 11:46 You know, I mean, you know-- 11:47 And the point, my point is to agree with 11:49 what you were saying otherwise. 11:51 Now the election is over, 11:52 there's no logic to even thinking along those lines. 11:56 So now it's going to be more of a, 11:58 more likely to be debated 11:59 on the real underlying religious liberty issue. 12:01 Well, that would be what we hope happens. 12:03 That this would be a true religious liberty debate 12:05 and not have this political sheen 12:07 or sort of subtext that-- 12:09 And you haven't said it yet 12:11 but the Seventh-day Adventist church 12:12 runs many institutions, many hospitals, 12:15 which I'm sure that 12:18 there's some entanglements with state I think so. 12:20 Just to be clear of this contraception requirement 12:22 does not anyway interfere 12:23 with Adventist religious beliefs, 12:25 so our statement on contraception 12:27 is both plan B and regular contraception. 12:28 But if there is a dynamic of government 12:32 meddling in the hospital or the church institutions 12:36 through the avenue of-- 12:38 in this case, health requirement, 12:40 then we would be sensitive to that, I'm sure. 12:42 Anyone would have to be. Yeah, absolutely. 12:45 And to reiterate again, the Seventh-day Adventist 12:47 religious liberty positions, 12:49 you can explain it in great length, 12:50 we can take many programs, 12:52 that's why we have this program 12:53 but we believe in the separation of church and state. 12:55 So we're very anxious to keep the civil affairs 12:58 in their own, on their own side of defense 13:01 and the church's operation 13:02 and that's why back to what you've mentioned, 13:04 Hosanna-Tabor was so important. 13:07 I'm enjoying this discussion so much, 13:09 that we are sailing past our break time. 13:10 So let's take a break and come back 13:12 with us after a break 13:14 and we'll continue our discussion of the Supreme Court 13:17 and some of the interesting 13:18 legal complications that consensual. |
Revised 2014-12-17