[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]

STATE OF RELIGIOUS LIBERTY IN THE
UNITED STATES

=======================================================================

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

__________

OCTOBER 26, 2011

__________

Serial No. 112-63

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Printed for the use of the Committee on the Judiciary

Available via the World Wide Web: http://judiciary.house.gov

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COMMITTEE ON THE JUDICIARY

LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TIM GRIFFIN, Arkansas LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania [Vacant]
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada

Sean McLaughlin, Majority Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------

Subcommittee on the Constitution

TRENT FRANKS, Arizona, Chairman

MIKE PENCE, Indiana, Vice-Chairman

STEVE CHABOT, Ohio JERROLD NADLER, New York
J. RANDY FORBES, Virginia MIKE QUIGLEY, Illinois
STEVE KING, Iowa JOHN CONYERS, Jr., Michigan
JIM JORDAN, Ohio ROBERT C. ``BOBBY'' SCOTT,
Virginia

Paul B. Taylor, Chief Counsel

David Lachmann, Minority Staff Director

C O N T E N T S

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OCTOBER 26, 2011

Page

OPENING STATEMENTS

The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Chairman, Subcommittee on the
Constitution................................................... 1
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Ranking Member, Subcommittee on the
Constitution................................................... 3

WITNESSES

William C. Lori, Bishop of Bridgeport, CT
Oral Testimony................................................. 5
Prepared Statement............................................. 8
Barry W. Lynn, Reverend, Americans United for the Separation of
Church and State
Oral Testimony................................................. 15
Prepared Statement............................................. 17
Colby M. May, Esq., Director & Senior Counsel, Washington Office,
American Center for Law and Justice
Oral Testimony................................................. 46
Prepared Statement............................................. 49

APPENDIX
Material Submitted for the Hearing Record

Response to Post-Hearing Questions from William C. Lori, Bishop
of Bridgeport, CT.............................................. 124
Material submitted by the Honorable Trent Franks, a
Representative in Congress from the State of Arizona, and
Chairman, Subcommittee on the Constitution
Letter from John C. Hagee, Cornerstone Church.................. 129
Letter from Rajdeep Singh, Director of Law and Policy, The Sikh
Coalition.................................................... 131
Material submitted by the Honorable Jerrold Nadler, a
Representative in Congress from the State of New York, and
Ranking Member, Subcommittee on the Constitution
Prepared Statement of Rev. Dr. C. Weldon Gaddy, President of
Interfaith Alliance.......................................... 134
Prepared Statement of Suhag A. Shukla, Esq., Managing Director/
Legal Counsel; Samir Kalra, Esq., Director and Senior Fellow,
Human Rights; and Nikhil Joshi, Esq., Member, Board of
Directors, the Hindu American Foundation..................... 138
Prepared Statement of Joe Solmonese, President, Human Rights
Campaign..................................................... 151
Prepared Statement of Marc D. Stern, Esq., Associate General
Counsel for Legal Advocacy, the American Jewish Committee
(AJC)........................................................ 154
Letter from Paul J. Kurtz, Chairperson, and Normal Allen, Jr.,
Director of International Outreach, the Institute for Science
and Human Values (ISHV)...................................... 167
Letter from Jon O'Brien, President, Catholics for Choice....... 169
Material submitted by William C. Lori, Bishop of Bridgeport, CT
Letter from the Most Reverend Timothy M. Dolan, Archbishop of
New York..................................................... 171
Article titled ``Battle flare between White House. Catholic
Groups,'' by Jerry Markon, The Washington Post............... 186

STATE OF RELIGIOUS LIBERTY IN THE UNITED STATES

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WEDNESDAY, OCTOBER 26, 2011

House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.

The Subcommittee met, pursuant to call, at 2:40 p.m., in
room 2141, Rayburn Office Building, the Honorable Trent Franks
(Chairman of the Subcommittee) presiding.
Present: Representatives Franks, Chabot, King, Jordan,
Nadler, Quigley, and Scott.
Staff present: (Majority) Zach Somers, Counsel; Sarah
Vance, Clerk; (Minority) David Lachmann, Staff Director; and
Veronica Eligan, Professional Staff Member.
Mr. Franks. Good afternoon. This Constitution Subcommittee
is called to order this afternoon for the important purpose of
examining the state of religious liberty in America. This is
something, in my opinion, that this Committee should do on a
regular basis, because religious liberty and freedom of
conscience are the source of all other liberties that mankind
has been endowed with. They occupy an absolutely essential
place among our unalienable rights.
It is interesting to remind ourselves that Christopher
Columbus was exercising his religious liberty when he went out
into the oceans to find a new world and came upon America. It
is also interesting to note that those who first colonized this
Nation from England came here in search of religious freedom,
religious liberty, and when they brought their Constitution
forward, they had debates about the subject.
One Richard Henry Lee, in the discussion that preceded the
composition of our Constitution, said ``It is true, we are not
disposed to differ much at present about religion. But when we
are making a constitution, it is to be hoped for ages and
millions yet unborn, why not establish the free exercise of
religion as part of the national compact?'' What an insightful
question that he asked at the time. I am grateful that they
proceeded on that basis.
Without religious liberty and freedom of conscience, all
other liberties would cease to exist. That is why, from the
Magna Carta to our own Bill of Rights, religious freedom has
been recognized as the ``first liberty.''
Religious freedom and a thriving religious culture have
always been defining attributes of life in America. Today, the
United States is, comparatively speaking, a very religious
Nation. In fact, polls show that well over 90 percent of
Americans actually believe in God. Despite the fundamental
nature of religious freedom and its importance in American
life, it has come under attack in recent years as never before.
If it is to be preserved, we must be more awake and more
vigilant than ever before.
We must remember that religious liberty involves much more
than freedom of worship alone. Religious liberty is exercised
both in private and in public and includes the freedom to build
and operate all the institutions of religion.
Unfortunately, those who lack appreciation for the public
component of religious liberty, and those who fail to see the
need to make religious exceptions from many generally
applicable laws, are putting the religious freedom that we
cherish so much in grave danger for us all. Rather than taking
advantage of the ample room the Constitution leaves for the
accommodation of religion, increasingly Federal, state, and
local governments are failing to create religious exemptions
from otherwise neutral laws. As one prominent scholar of
religious liberty has observed, government officials should
``regard the free exercise of religion not primarily as a
danger to be contained or a nuisance to be managed but as a
human, social, and political good to be both protected and
promoted.''
However, so-called anti-discrimination policies that make
no exception for religious beliefs are increasingly posing an
ominous threat to religious liberty. For most religious groups,
public service is a constituent element of their religious
beliefs. Religious groups in America establish hospitals,
operate homeless shelters, provide counseling services, and run
agencies for adoption and foster care for children who might
otherwise have no one in the world.
But in the name of anti-discrimination or neutrality, these
traditional religious services to the sick and less fortunate
are threatened as Federal, state, and local governments
increasingly regulate private social services in ways that will
not accommodate or even tolerate many religious beliefs on an
otherwise neutral basis. These regulations are forcing
religious groups to choose between abandoning their social work
or abandoning their sincerely held religious beliefs in order
to continue to serve the needy.
Additionally, there are some who wish to use the
Establishment Clause to eradicate free religious expression in
a manner that is the complete antithesis of the original intent
of that noble clause in our Constitution. They wish to vanquish
any acknowledgement of religion from the public square, pushing
traditional religion behind closed doors and replacing it in
public life with a new orthodoxy of leftist secularism.
That America is a Nation founded upon the Judeo-Christian
principles of the Bible is an irrefutable axiom of history. Our
very first president and father of our country, George
Washington, hand-wrote in his own personal prayer book, ``It is
impossible to rightly govern the world without God and the
Bible.'' Thomas Jefferson, our third president and one of the
critical writers of our Declaration of Independence, authored
the first plan of education to use the Bible for teaching and
reading to students. Abraham Lincoln, our 16th president, said
``I believe the Bible is the best gift God has given to man.
All the good savior gave to the Earth was communicated through
this book.''
Now the Nation and the Constitution those leaders built and
gave to ensuing generations also gave us the power as
individuals to reject the religious beliefs that motivated them
to do so. But we do not have the right to redact the history of
our Nation's religious heritage or to crush the religious
expression of individuals who still hold it in their hearts.
So oftentimes those who would trample underfoot the
religious freedom of their fellow Americans do so in the name
of a ``strict wall of separation between church and state.''
But rather than pointing out the profound historical
misinterpretation of that phrase, I will only remind all of us
that while that phrase did indeed appear prominently in the
Soviet constitution, it appears nowhere in the United States
Constitution.
The religious freedom protected by the First Amendment
encompasses more than the ability to seek religious truth
behind the walls of worship. It includes the right to embrace
and express one's religious beliefs in public. This means that
Federal, state, and local governments must leave room for
religious individuals and groups to serve the community in
accordance with their sincerely held beliefs, welcome religious
perspectives in the debate over important issues, public
issues, and allow public acknowledgement of the importance of
religion in America.
So, ladies and gentlemen, we should all remind ourselves
this morning that true tolerance lies not in pretending that we
have no differences as Americans, but rather in being kind and
respectful to each other in spite of our differences, religious
or otherwise, and I hope this hearing can shed light on the
current state of religious liberty in the United States both in
terms of areas where we are succeeding in embracing the
American dream of true religious freedom and in those in which
we are failing.
Thank you for being here, and I will yield now to the
Ranking Member for an opening statement.
Mr. Nadler. Thank you, Mr. Chairman. I want to begin by
thanking you for scheduling this hearing on a topic that is
central to our common American values, our first freedom. I am
concerned about threats to religious liberty in America,
threats from legislatures, from the Supreme Court, from
candidates, and from demagogues. Too often, the rights of
unpopular minorities are trampled upon by the majority, and
when it comes to religion, everyone is unpopular somewhere.
But threats also come from laws not necessarily targeting
religion. Nonetheless, writing in Employment Division v. Smith,
Justice Scalia said, ``If prohibiting the exercise of religion
is merely the incidental effect of a generally applicable and
otherwise valid provision, the First Amendment has not been
offended.'' He went on to make the appalling statement that,
``It may fairly be said that leaving accommodation to the
political process will place at a relative disadvantage those
religious practices that are not widely engaged in, but that is
an unavoidable consequence of democratic government. Precisely
because we are a cosmopolitan Nation made up of people of
almost every conceivable religious preference, and precisely
because we value and protect that religious divergence, we
cannot afford the luxury of deeming presumptively invalid as
applied to the religious objector every regulation of conduct
that does not protect an interest of the highest order.''
Luxury? That appalling hostility to religious liberty,
coming as it did from a Justice who is hailed as an icon of the
conservative movement, was truly chilling. Congress responded
swiftly with the Religious Freedom Restoration Act or RFRA,
legislation that I was privileged to work on when I was first
elected to Congress. It united groups as diverse as the
American Civil Liberties Union and the National Association of
Evangelicals.
The rule it restored, of strict scrutiny, did not provide a
blanket exemption for all conscientious objections--the Supreme
Court disposed of that approach in the Estate of Thornton v.
Caldor--but rather it restored the balancing test that had
served us so well for three decades. It is by balancing those
interests, and forcing government to demonstrate an interest of
the highest order before squelching a religious practice, that
strikes the right balance.
Although the Supreme Court invalidated RFRA in the Boerne
decision in 1997,at least as applied to states--it is still
good law as applied to the Federal Government--I and Members
from both sides of the aisle responded with the Religious Land
Use and Institutionalized Persons Act, which passed in 2000 and
remains good law.
But government is not the only threat to religious liberty.
There are many in this country who continue to oppose the
construction of houses of worship in our communities. We had a
particularly ugly incident in my own district, although I am
proud to say that the local community, local elected officials,
and our courts stood up to the bigots and demagogues who
opposed the right of local Muslims to erect a community center.
There are also those who believe that they have the right
to deny employment or housing to others based solely on a
person's religion. While I think most of us would accept that
the ministerial exemption, the existence and scope of which are
currently before the Supreme Court, is constitutionally
mandated, some employers think they have a right either to
refuse to hire someone, or to refuse to give them time off for
religious observances, or to refuse to accommodate the wearing
of religious articles.
So there are many threats to religious liberty in America
today, and I am pleased we will have the opportunity to examine
the broad range of those threats today. I thank you, Mr.
Chairman. I yield back the balance of my time.
Mr. Franks. Without objection, the other Members' opening
statements will be made part of the record.
And I want to welcome the witnesses and welcome those that
are observing here today with us.
Our first witness is Bishop William Lori, the Bishop of
Bridgeport, Connecticut, and the Chair of the U.S. Conference
of Catholic Bishops' Committee on Religious Liberty.
Bishop Lori was ordained to the priesthood in 1977. He
became Auxiliary Bishop of Washington in 1995, and was
installed as the Bishop of Bridgeport in 2001. Bishop Lori is
Chairman of the Board of Trustees of Sacred Heart University
and past-Chairman of the Board of Trustees of the Catholic
University of America.
Our second witness is Reverend Barry Lynn, Executive
Director of Americans United for Separation of Church and
State. In addition to his work as an activist and lawyer in the
civil liberties field, Reverend Lynn is an ordained minister in
the United Church of Christ. He appears frequently on
television and radio broadcasts to discuss religious liberty
issues. He has had essays published in outlets such as USA
Today and the Wall Street Journal, and in 2006 authored the
book ``Piety and Politics: The Right-Wing Assault on Religious
Freedom.''
Our third and final witness is Colby May, Senior Counsel
and Director of the Washington office of the American Center
for Law and Justice. With the ACLJ since 1994, Mr. May
specializes in Federal litigation, regulatory proceedings,
communications and technology, non-profit tax issues, and First
Amendment law. He has represented parties and filed friend of
the court briefs in several landmark Supreme Court cases. Mr.
May also serves as adjunct law professor at Regent University
and on the boards of directors of several civic and charitable
organizations.
Each of the witnesses' written statements will be entered
into the record in its entirety, and I ask that each witness
summarize his testimony in 5 minutes or less. To help you stay
within that time, there is a timing light on your table. When
the light switches from green to yellow, you will have 1 minute
to conclude your testimony. When the light turns red, it
signals that the witness' 5 minutes have expired.
Before I recognize the witnesses, it is the tradition of
the Subcommittee that they be sworn. So if you will please
stand to be sworn.
[Witnesses sworn.]
Mr. Franks. Thank you. You may take a seat.
I would now like to recognize our first witness, Bishop
Lori, for 5 minutes.
Bishop?

TESTIMONY OF WILLIAM C. LORI,
BISHOP OF BRIDGEPORT, CT

Bishop Lori. Thank you, Mr. Chairman. On behalf of the
United States Conference of Catholic Bishops, the USCCB, allow
me to thank you for the inviting me to be with you today to
offer testimony on religious liberty.
Religious liberty is not merely one right among others, but
enjoys a certain primacy. Pope Benedict XVI recently explained:
``It is indeed the first of human rights, not only because it
was historically the first to be recognized but also because it
touches the constitutive dimension of man, his relation with
his Creator.'' Religious liberty is also first on the list in
the Bill of Rights, and is commonly called our ``First
Freedom.''
Religious liberty is also prior to the state itself. It is
not merely a privilege that the government grants and so may
take away at will. Instead, religious liberty is inherent in
our very humanity, hard-wired into each and every one of us by
the Creator. This insight is reflected in the laws and
traditions of our country from inception. The Declaration of
Independence boldly proclaims as a self-evident truth that our
inalienable rights are ``endowed by our Creator''--not by the
State.
Religious freedom is certainly an individual right, but it
also belongs to churches and other religious institutions
comprised of citizens who are believers and who seek, not to
create a theocracy, but rather to influence their culture from
within. An indispensable element of religious freedom is the
right of churches ``not to be hindered, either by legal
measures or by administrative action on the part of government,
in the selection, training, appointment, and transferral of
their own ministers.'' We are grateful that the Federal courts,
at least to date, have uniformly recognized this protection.
The Church also teaches that these rights of religious
freedom are held not just by Catholics. Government has the duty
``to assume the safeguard of the religious freedom of all its
citizens in an effective manner, by just laws or by other
appropriate means.'' The United States stands strongly for the
principle that these rights of freedom are also rights of
equality, that government should not impose any special civil
disadvantages or otherwise discriminate against its citizens
based on religion.
Although it may not have always lived up to its principles,
our country's unique capacity for self-correction has always
provided avenues to return to these principles. Regrettably,
now is the time for such self-correction.
In the last few months we have witnessed grave threats to
religious liberty. In August, the U.S. Department of Health and
Human Services issued regulations to mandate the coverage of
contraception, including abortifacients, and sterilization as
preventive services in almost all private health insurance
plans.
In May, HHS added a new requirement to some of its service
agreements that would bar otherwise qualified service providers
if conscience prevents them from facilitating abortion and
contraception. USAID is increasingly requiring contractors to
provide contraception in a range of international relief and
development programs.
The Federal Department of Justice has started filing briefs
actively attacking DOMA's constitutionality, claiming that
supporters of the law could only have been motivated by
bigotry. DOJ needlessly attacked the very existence of the
ministerial exception before the Supreme Court, in opposition
to a vast coalition of religious groups urging its
preservation. At the state level, most recently in New York and
Illinois, religious liberty protections associated with the
redefinition of marriage have fallen far short of what is
necessary.
The root causes of these threats are profound, but we can
and must treat the symptoms immediately, lest the disease
spread so quickly that the patient is overcome before the
ultimate cure can be formulated and delivered.
As to the preventive services mandate, I urge the passage
of the bipartisan Protect Life Act, Abortion Non-Discrimination
Act, and Respect for Rights of Conscience Act. We welcome
recent House action on some of these bills.
The illegal conditions that government agencies are placing
on religious providers of human services may call for a
Congressional hearing or some other form of investigation to
ensure compliance with applicable conscience laws, as well as
to identify how these new requirements came to be imposed.
Additional statutes may be appropriate to create new
protections of conscience or private rights of action.
Unfortunately, enforcement of the existing protections now lies
principally with the very Federal agencies that may be
violating them.
This body should reject the so-called Respect for Marriage
Act and continue to defend DOMA in court as long as necessary.
Moreover, DOJ's decisions to abandon both DOMA and the
ministerial exception seem to warrant congressional inquiry. To
the extent that state adoption and foster care services are
federally funded, this opens an avenue for protecting the
religious liberty of faith-based service providers which should
be explored more fully.
Thank you for your attention, and again, for your
willingness to give religious freedom the priority it is due.
[The prepared statement of Bishop Lori follows:]

__________

Mr. Franks. Thank you, Bishop Lori.
Reverend Lynn, thank you for being with us this afternoon.
You are recognized for 5 minutes, sir.

TESTIMONY OF BARRY W. LYNN, REVEREND, AMERICANS UNITED FOR THE
SEPARATION OF CHURCH AND STATE

Reverend Lynn. Thank you very much, Mr. Chairman.
Mr. Franks. Reverend Lynn, would you make sure that
microphone is on?
Reverend Lynn. How is this?
Mr. Franks. That sounds good.
Reverend Lynn. All right. Thank you, and thank you for
holding this hearing.
We have a dizzying level of religious freedom in this
country, and even more so if you happen to be a member of a
well-established or majority faith in America. There is no war
against Christianity being waged by elected officials, or even
by Federal courts.
The real threat to religious liberty comes from those who
seek special government blessings for those in favored faiths
and conversely the treatment of members of other faiths as
second-class citizens.
When real religious freedom is denied, we can look very
ugly in America. When Muslims in Murfreesboro, Tennessee tried
to erect a mosque and a lawsuit backed by the lieutenant
governor claimed that Islam is not a true religion, we can look
ugly.
When members of the community in Katy, Texas protested the
construction of a mosque by staging pig races next to the
property, we can look ugly.
When the Park 51 Muslim Community Center wants to erect a
building on its own land and the American Center for Law and
Justice sues to prevent them from doing so, we can look ugly
and even hypocritical.
When religious freedom is delayed, we can look like a very
coarse America. It took 10 years and a lawsuit from Americans
United before the widow of U.S. Army Sergeant Patrick Stewart,
killed in Afghanistan, was permitted to put a pentacle, a
Wiccan sacred symbol, on her husband's memorial marker in a
Nevada veterans cemetery. The VA in previous Administration
refused to add that symbol to the 38 other emblems of honor
because a top official there had heard Commander-in-Chief
George W. Bush say on television that he didn't think Wicca was
a real religion.
And how coarse that in Johnson County, Tennessee, when an
atheist seeking merely to put up an historical display about
the Constitution's guarantee of religious freedom in an open
forum area of the courthouse is denied access and a
commissioner says, ``This is a good Christian community that
welcomes people who move here. But if you want to attack God,
you should leave.'' I wonder if that official would tell a
firefighter putting out a blaze in his house to leave if he
learned that that brave rescuer happened to be a freethinker.
When religious practice is compelled, we can look like a
theocratic America. Bay Minette, Alabama offers certain
offenders the so-called ``option'' to avoid jail or fines by
going to church every week for a year.
Recently, Americans United reached a settlement with the
heavily government subsidized Central Union Mission in the
District of Columbia to end their practice of not allowing
those in need to eat lunch or have a bed for the night unless
they agreed to attend a worship service.
When government supports religious preferences in hiring
with tax dollars through the faith-based initiative, and two
Administrations allow religious groups to give special
preference to people of their own religion, we can look like a
discriminatory America.
World Vision is one of the largest recipients of grants
from the U.S. Agency for International Development. Government
grants amount to about a quarter of that organization's total
U.S. budget. Yet this organization will hire only those who are
Trinitarian Christians even in predominantly Muslim or Hindu
countries, arguing ``that we're very clear from the beginning
about hiring Christians. It's not a surprise, so it's not
discrimination.'' Collateral to that, there are over 200
special exceptions and exemptions in Federal law for religious
groups today. Now some groups, as we've heard, are seeking even
more exemptions, ones that can cost vulnerable people good
health care.
When certain expansive exemptions are passed, we can look
like an America of special privilege for the powerfully
connected, and sometimes these exemptions can make America look
dangerous. A bill that just passed this House would actually
permit medical workers to refuse to serve a patient even in a
medical emergency. Under this proposal, a woman who needs an
abortion to save her life may simply be left to die if the
medical facility has a staff full of people who disapprove of
abortion.
Let us not be fooled. You may hear some holy horror stories
with, at most, a scintilla of truth. You may hear claims of
rights being violated that do not really exist, with remedies
proposed that are merely an excuse for obtaining special
treatment. You will hear Biblical tenets used to justify
legislation where the real basis for decision-making must not
be holy scripture, as anybody understands it, but the core
constitutional values shared by all of us.
In conclusion, there is an actual movement of several
organizations in America to try to ban the use of sharia law in
the courts. Sharia law is not the threat. The actual threat is
that there are serious efforts afoot to try to twist the
purpose of our own Constitution, and in this twist we will defy
George Washington's promise that we would ``give to bigotry no
sanction.'' We would degrade James Madison's claim that in this
country we cherish, in his words, ``the mutual respect and good
will among citizens of every religious denomination.'' That
would not only make America look exclusionary, it would make it
so, and that would be the ultimate tragedy for religious
freedom in our country.
Thank you.
[The prepared statement of Reverend Lynn follows:]

ATTACHMENTS

__________

Mr. Franks. Thank you, Reverend Lynn.
And now, Mr. May, you are recognized for 5 minutes, sir.

TESTIMONY OF COLBY M. MAY, ESQ., DIRECTOR & SENIOR COUNSEL,
WASHINGTN OFFICE, AMERICAN CENTER FOR LAW AND JUSTICE

Mr. May. Thank you, Chairman Franks, Ranking Member Nadler,
and Members of the Constitution Subcommittee, for the
opportunity to participate in this important hearing on the
state of religious liberty in America today. As Edmund Burke
rightly noted during the American founding, eternal vigilance
is the price of liberty, and today's hearing is a necessary and
valuable part of that vigilance.
The American Center for Law and Justice, the organization I
represent today, defends religious liberties throughout the
world. Nowhere is our effort more profound, however, than here
at home. This Nation's founders cherished religious liberty and
built our country on the assurance that America would be free
to practice the religion of their choice without the fear of
government interference. While the liberty to practice one's
religion is greater in this country than in any other,
conflicts between religious liberty and other interests do
exist. In this conflict, many of our fundamental rights are
sustained through the efforts of Congress and state
legislatures. Others must be defended daily in the courts of
our Nation.
In several areas, as Congressman Nadler noted, Congress and
the courts have, in fact, successfully protected religious
liberty in many ways, legislation such as the Religious Freedom
Restoration Act that Congressman Nadler mentioned, the
Religious Land Use and Institutionalized Persons Act, Title VII
of the Civil Rights Act and, of course, the Equal Access Act.
These are all good examples.
But with these successes, however, issues of controversy
remain where courts have curtailed religious liberties. Among
the most controversial are within the public schools and
universities of our Nation. University speech codes, meant to
create an environment in which all students can partake in the
educational experience free from discrimination and harassment,
have severely undermined religious liberties. In fact,
religious students and groups can be prevented from sharing
beliefs with other students out of fear of being charged with
harassment. Vague policies deter students from espousing
beliefs on issues of public concern such as the definition of
marriage, gender roles, and absolute religious truth. Courts
have given public university officials the power to punish
students on the grounds that their religious speech is
insulting or that it disrupts communal living.
Court decisions such as the Supreme Court's recent
Christian Legal Society v. Martinez and the 11th Circuit's
decision earlier this year in Alpha Delta v. Reed also restrict
religious freedom on public colleges and school campuses. In
upholding school policies that require religious groups to open
their leadership positions to students who do not share the
group's beliefs essentially destroys the equal right to
associate freely with like-minded individuals as a recognized
religious school group. Religious groups must now either open
their leadership posts to those who revile and ridicule their
deeply held religious beliefs, or they must cease to exist. Or,
if they exist, they must do so as second-class citizens,
ineligible for the benefits received by officially-recognized
organizations.
The right of parents to direct and protect their children's
religiously-based morals is another battleground. Religious
parents who send their children to public school often find
their religious morals contradicted by sex education courses,
for example. Courts have allowed school districts to expose
young children to sexual behavior that many religious parents
and, in fact, many parents in general oppose.
Who can forget the ruling in Brown v. Hot, Sexy and Safer
Productions where, during a mandatory-attendance AIDS
prevention presentation, students were informed they were going
to have a group sexual experience with audience participation;
where profane, lewd, and lascivious language was used to
describe body parts; and where oral sex, masturbation,
homosexual sexual activity, and condom use during promiscuous
premarital sex were advocated and approved? Few school
districts provide opt-out options for parents, and even fewer
schools inform parents as to when such controversial courses
will be taught. In fact, the 1st Circuit's ruling in Hot, Sexy
and Safer Productions held that children have no right to be
free from exposure to vulgar and offensive language or debasing
portrayals of human sexuality.
These issues provide merely a glimpse into the many areas
where religious liberty faces problems in our country. In light
of ever-changing discrimination laws and harassment policies,
religious people continue to face a troublesome choice: violate
deeply held religious beliefs, or receive punishment from the
state and local officials. Undoubtedly, religious adherents
will continue to face such dilemmas in the future.
The courts and the judges that preside over them will
obviously largely determine the outcome of America's religious
liberties. But the battle to maintain broad and robust
religious liberties falls on each of us. In a speech to the
military in 1789, President John Adams explained that the very
nature of our constitutional government is being dependent upon
religious and moral values. So I commend the Committee to read
that quote which I provided in my statement to all of you.
Now, look, undoubtedly religious liberty has been and
always must be the crucial cornerstone upon which our freedoms
rest. Without it, as President Adams warned in that speech, we
are doomed.
I thank the Subcommittee for a chance to participate in
today's hearing. I look forward to any questions or discussions
we may have. Thank you.
[The prepared statement of Mr. May follows:]

ATTACHMENT

__________

Mr. Franks. And I certainly thank all the witnesses.
We will now begin with the questioning time, and I will
recognize myself for 5 minutes, and I will begin with you,
Bishop Lori, if I might.
I know social work is a large part of the Catholic Church's
mission. However, it appears that some of the government
policies related to private social services are increasingly
failing to make exceptions for sincerely held religious
beliefs.
What is the impact of that failure to make exception for
religious beliefs having on the Church, especially as it
relates to medical services and adoption and foster care? What,
in practical terms, is it doing to you?
Bishop Lori. Sure. Indeed, providing social services is
integral to our mission. It flows from preaching the Gospel,
celebrating the sacraments, and that is what sustains and
motivates the work that we do.
What is beginning to happen as the result of exemptions--
for example, the HHS exemptions for private health insurance
plans--is that we are worried that if those rules become
enforced, we will be hindered in our ability to provide health
insurance services for our employees. Also, in some states such
as Massachusetts and Illinois, because of the convictions of
Catholic Charities organizations about the nature of marriage,
they have been driven out of adoption services and foster care
services. I guess those would be kind of some of the examples
I'd like to cite.
Now, at the larger level, Catholic Relief Services has been
denied a contract by USAID because of a newly added rule that
it would have to provide access to so-called reproductive
services in order to qualify. And so Catholic Relief Services,
which has a splendid record of serving the poorest of the poor.
The same with Migration and Refugee Services. They too are
being driven out of, or not able to compete for, government
contracts because of their convictions about human life and
about contraception. And so, as a result, they've been taken
off the playing field, if I could put it that way.
That was not terribly articulate, but I hope you get the
point.
Mr. Franks. I get the point, absolutely. Thank you, Bishop,
for all your good work, sir.
Mr. May, if I might switch gears here a little, as you
know, I am one of the co-chairs of the Religious Freedom Caucus
here in the Congress. And, of course, as we look across the
world, it is not just direct persecution of a particular faith,
but sometimes the anti-discrimination laws in a particular area
are used to keep someone from criticizing a religious
perspective, and I certainly believe a person has a right to
criticize my faith or to examine its veracity, and they do on a
regular basis.
So I want to ask you a question along those lines. It is a
challenging question. But last week, the Daily Caller and
others reported that certain Islamic religious groups met with
the Department of Justice and recommended that there be
cutbacks in anti-terrorism funding, curbs on investigators and,
for our purposes, ``a legal declaration that U.S. citizens'
criticism of Islam constitutes racial discrimination.''
Now, Mr. Tom Perez, the head of the Civil Rights Division,
said, ``We must continue to have this critical dialogue.'' He
said in another place, ``I sat there the entire time taking
notes and I have some concrete thoughts in the aftermath of
this.''
My concern is it sounds like the first steps in
implementing blasphemy laws, as you see in India and other
places, where if someone expresses a different faith
perspective, that it is called blasphemy, and something in this
country has fought against, obviously, all over the world, with
the exception, of course, in this case of Mr. Obama's
sponsorship of a resolution at the United Nations with a member
of the Organization of Islamic Conference, which urged exactly
these kinds of anti-free speech measures.
So my question is this: Does the First Amendment permit our
government to abridge the free speech rights of everyone by
permitting a blasphemy law that is the banning of all speech
critical to a particular religion, and why or why not? What are
the implications?
Mr. May. Yeah, I think the answer's pretty simple, no. And,
in fact, I'd be shocked if the Department of Justice held a
different point of view. If they did, I think they probably
ought to be before this Committee to explain that particular
point of view.
Let's not overlook the obvious. It seems to me that when
people come together in their religious communities, it is an
affirmation of positive things, worthwhile things for society.
It is also true that those communities believe that some things
are better than others, and when they articulate that they
believe, for example, that all are created in the image of God
and all are worthy of his love and respect, including women in
that context, you've got to wonder where a proposal where you
equate, if I heard you right, the criticism of Islam is equal
to racial discrimination?
Mr. Franks. Asking--let me repeat the quote, ``a legal
declaration that U.S. citizens' criticism of Islam constitutes
racial discrimination.'' They are asking the Department of
Justice for this.
Mr. May. Yeah. I mean, it's rather shocking that that could
be the kind of proposal in the face of our First Amendment
because, remember, there is discussion all the time among
diverse groups in America. That's known as pluralism, and it's
actually a very healthy and a good thing. Sometimes it gets a
little robust. Sometimes maybe there's smoke rather than light.
But the reality is that's what we need the First Amendment for,
to be able to figure out ways to be able to work together and
build a consensus that makes the kind of country we have today.
Mr. Franks. Well, obviously, if we ban critical speech of
any religion, then wouldn't that law, by definition, muzzle the
proponents of all other religions whose basic tenets may be in
conflict with that religion? It is one of those things where
free speech sometimes requires that people like me that have a
religious faith are going to have that faith challenged.
With that, I am out of time. It always gets away quicker
than I like. I would like to now yield to the Ranking Member
for 5 minutes.
Mr. Nadler. I thank the Chairman for yielding.
Bishop Lori, 2 years ago, a justice of the peace in
Louisiana refused to marry an interracial couple. When he
resigned he said, ``I would probably do the same thing again. I
found out I can't be a justice of the peace and have a
conscience.'' Do you support his right to do that and keep his
job, to refuse to marry an interracial couple?
Bishop Lori. I believe that first of all, we have to make a
very careful distinction between same-sex marriage, which is
based upon the difference of----
Mr. Nadler. We will get to that in a minute.
Bishop Lori. All right.
Mr. Nadler. Let me just--answer the first question first,
please.
Bishop Lori. All right. The answer is no. I believe that
marriage between people of two different races is an entirely
different matter than same-sex marriage, and so I would----
Mr. Nadler. But you would say that the state has the right
to expect its employees to enforce its law, which says that
interracial couples may marry by issuing a license?
Bishop Lori. I would say, in the case of interracial
marriage, yes.
Mr. Nadler. Yes. Okay. Now let me get to the second half.
Bishop Lori. All right.
Mr. Nadler. Why, then, given what you just said, is it not
legitimate for public employers to require their employees to
fulfill their job duties in other contexts, including providing
a license to a same-sex couple if the law of the state or the
jurisdiction provides for marriages of same-sex couples?
Bishop Lori. For example, in the State of New York, there
are county clerks I know that are getting penalized for their
refusal to go along with this.
Marriage is a unique relationship. It takes a man and a
woman. That is what a lot of people, a lot of Americans
believe, what a lot of people of faith and reason believe. It
is a unique relationship of husband and wife, the only
relationship capable of producing children.
Mr. Nadler. Okay. But that----
Bishop Lori. We believe that----
Mr. Nadler. I am not going to--I have a very limited amount
of time. We understand that view. We have heard it many times.
Bishop Lori. Okay. It is, then, a religious conviction.
Mr. Nadler. Yes.
Bishop Lori. And it is very troubling when this religious
conviction----
Mr. Nadler. But the question is----
Bishop Lori [continuing]. Born of faith and reason is
portrayed as bigotry.
Mr. Nadler. I am not portraying it as bigotry. I am not
suggesting that. I haven't mentioned the word. I am asking a
different question.
People have various different religions. You stated that it
is the right, in your opinion, of the state, having passed a
law that allows interracial marriages, to say that the
religious belief or the conscientious belief of a state
employee cannot trump that, that either he issues a license or
he can't hold that job, and that is a legitimate thing for the
state to do.
The question is, given that, why does the same reasoning
not hold with respect to a county clerk or whatever, with
respect to same-sex marriage? We understand that he has a
religious belief which I am not going to debate the validity
of, obviously. It is his religious belief. He is entitled to
it, and it is protected, but it prevents him from doing a
ministerial duty which the state has requires him to perform.
Why is that situation different from the first situation, other
than someone's opinion as to the validity of one religious
belief and not the other?
Bishop Lori. Well, by asking the question as you did, I
think you're drawing a parallel between racial discrimination
and same-gender marriage, so-called marriage.
Mr. Nadler. Well, no, I am not drawing a parallel. The
State of New York or some other state made a decision. Why is
it religious discrimination to hold its employee in one case--
--
Bishop Lori. We believe religious liberty is an individual
right and that a person has a right to bring his religious
convictions into the workplace, and that he has a right not
only to believe them privately but also to act upon them, and
that religious conviction should be broadly accommodated.
Mr. Nadler. But then why can that person not refuse to
perform the interracial marriage if that is his religious
belief?
Bishop Lori. Because marriage, the relationship between a
man and a woman, is different----
Mr. Nadler. All right. So, in other words, because one
religious belief----
Bishop Lori [continuing]. Is different than relationship of
a man and a woman who happen to be of different races.
Mr. Nadler. Thank you. In other words, because one
religious belief is more valid than the other is what you are
saying.
Let me ask you this. Does an insurance company, a for-
profit entity incorporated for the purpose of engaging in
commerce, have the same religious liberty right as a not-for-
profit religion?
Bishop Lori. I think that an insurance company that wishes
to serve entities that have reservations about what should be
covered in its health care plans ought to be accommodated.
Mr. Nadler. All right. Let me ask you--my time is running
out. I have one question for Reverend Lynn. You are an ordained
minister who is obviously committed to religious liberty and
free exercise. You are also an attorney with expertise in
constitutional law. Tell me why you oppose allowing a religious
organization to apply religious criteria to Federally-funded
jobs and why you think this is a threat to religious liberty,
please.
Reverend Lynn. I think it's a threat, Congressman Nadler,
because once you enter into a relationship where the government
funds your religious ministry, that in that part of the
ministry that is funded by tax dollars, there cannot be an
assumption that, or a policy that, dictates that those persons
are exempt from other civil rights statutes.
When you get the money from the Federal or state
government, then I think you're obligated to follow the
precepts not of your own denomination or your own faith
community but the requirements of, in most instances, Federal
law, which does not permit discrimination based on religion,
creed, color, and several other well-known factors.
So I see this as not in any way inhibiting the power of
ministries to do what they want to do with their own dollars,
with the money that they collect in the collection plate. But I
think the equation changes dramatically when Federal funds
enter the picture. You cannot simply then say I'll take the
money but I won't take any restrictions, I won't take any
adherence to the core civil rights principles of our country.
That is a stretch of anyone's imagination to find that as a
matter of religious freedom. That's pure and simple
discrimination with the tax dollars that come from all of us,
including some of those job applicants, for example, who may
fall outside of the favored community from which they choose to
hire.
Mr. Nadler. I thank you. My time has expired. I yield back.
Mr. Franks. I thank the gentleman.
And I now recognize the gentleman from Iowa, Mr. King, for
5 minutes.
Mr. King. Thank you, Mr. Chairman.
I thank all the witnesses for your testimony.
And I would first remark what goes through my mind when I
hear the advocacy from the gentleman from New York about
conscience protection, and I would think that if it is the
position of anybody in this country that one would be compelled
to carry out a marriage of same-sex couples if that violates
your religious convictions, if it violates a sacrament of the
church, for example, or if one is compelled as a pharmacist to
distribute birth control against one's religious beliefs, if
that is the position, and I am hearing that position
consistently in this Committee, then I would suggest that when
you put the shoe on the other foot, if you have a prison warden
whose job it is to carry out an execution, would the advocates
for the elimination of conscience protection also argue that
that prison warden should be compelled to carry out the
execution if it violated his conscience? And I would turn that
question to Bishop Lori.
Bishop Lori. I would agree with your observation,
Congressman. It seems to me that conscience protection has
always been a part of our way of life. The idea is that because
one works for the government, one has to check one's conscience
at the door, whether those are conscientious objections to
abortion or to same-sex marriage or to capital punishment, or
even the service of the undocumented. It seems to me that these
things have always been broadly accommodated and they should
continue to be broadly accommodated. That's one of the things
that has made our country great.
To paint conscientious objections to things like abortion
or contraception or same-sex marriage as discriminatory really
flies in the face of what religious liberty is. It means the
right to bring our convictions into the public square, a right
to act upon them, a right not to be compelled to do things
which we consider to be inherently wrong. And anybody in a
repressive society can believe what he wants privately, but in
a free society you can bring your convictions out into public.
Mr. King. Bishop, if an individual or a group of
individuals actively engaged in or promoted the idea of
desecrating the eucharist, would that be a direct affront to
the church?
Bishop Lori. It would indeed, of the most serious nature.
Mr. King. And of the sacraments of the church, would you
name the seven sacraments first, please?
Bishop Lori. Sure. Just like my confirmation classes.
Baptism, confirmation, eucharist, penance, anointing of the
sick, marriage, and holy orders.
Mr. King. And you learned it as last rites and had to
change that----
Bishop Lori. Yes, and it used to be called extreme unction.
It's called----
Mr. King. Even further back. I just wanted to make that
point, that when there is an active effort to desecrate a
sacrament of the church, that is a direct insult and affront to
the Catholic Church.
Bishop Lori. Absolutely.
Mr. King. And marriage, of course, clearly is one of the
seven sacraments----
Bishop Lori. Marriage is recognized as a sacrament. First
of all, it's recognized as something of a natural relationship,
inscribed in our nature by the Creator, that has served the
common good and is a pillar of civilization. It's a unique
relationship of a man and woman. The Church has also recognized
it as a sacrament because the love of husband and wife
expresses the love of Christ for the Church.
Mr. King. Let's explore another principle, and that is as I
am hearing this blurred approach to the implication that civil
rights extend to same-sex marriage, for example, and I would
like to explore a little bit the concept of immutable
characteristics that were the foundation of the Title VII of
the Civil Rights Act. These are the protection for race, color,
religion, sex, national origin, religion being the only one of
those in the list that is specifically constitutionally
protected. The balance of them are immutable characteristics
that can be independently identified and cannot be willfully
changed.
When we go beyond the definition of immutable
characteristics, then could you talk to us a little bit about
what that does to this concept of civil rights and equal
protection?
Bishop Lori. Sure. It seems to me that when you take an
institution such as marriage and you redefine it arbitrarily,
then you are taking something that is not only long established
but unique and for the common good of society, and you are
cutting it loose from its moorings. Marriage is not simply--
it's not as if you could make one change and that is it. The
notion of what marriage is appears throughout Federal law. It
appears in state law. It appears in regulations. It affects how
church and state relate in a broad variety of ways, and by
arbitrarily redefining it, you're cueing up church/state
conflict for years to come, because marriage is so broadly
referred to throughout American law.
Mr. King. Thank you, Bishop. I thank all the witnesses. I
regret I was not able to ask questions of the balance of the
panel and I yield back.
Mr. Franks. Thank you, Mr. King.
Mr. Quigley, you are now recognized for 5 minutes, sir.
Mr. Quigley. Thank you, Mr. Chairman.
Bishop, I respect and truly appreciate your--and the term
you used was ``religious conviction.'' You can recognize the
same sort of religious conviction worked the other way for a
long time. I mean, it wasn't until the '60's that the Loving
case was decided about interracial marriage in the United
States. And for, let's just say, a chaplain in the military
whose religious beliefs are different, and they have the same
religious conviction you have, that a same-sex marriage is part
of their faith, don't you see the similarities? Don't you see
that their passion and their beliefs, however strongly you
disagree with them--the Constitution doesn't say because the
majority faith or the majority public--I think you used ``a lot
of people'' were the actual words you used--believe this is
what marriage is, but that is not what the Constitution
protects. The whole point of the Constitution was to protect
minorities, those who disagree. I don't think you need to
protect popular belief.
Don't you respect their faith, their religion, that they
believe that this is the right thing to do? Inasmuch as you
want me to protect those who can say no to marrying a same-sex
couple, don't you want to defend those who have the opposite
belief? I know you can't put aside your faith and your
position, but if you are in this seat, don't you understand
that difference?
Bishop Lori. I respect individuals, and I respect their
dignity, and I certainly assume good will. At the same time,
one of the primary reasons why the state has an interest in
marriage is because of its contribution to the common good.
It's unique. In other words, I respect individuals who might
hold a differing view, but I would also maintain stoutly as a
matter of faith and reason that marriage is something not
subject to redefinition.
It is a unique relationship of a man and a woman, the only
one capable of producing children, and there is a great
interest on the part of the state in stable homes where
children learn to relate to male and female role models and are
invested with the virtues of citizenship. And I would also
recognize that marriage, as understood as a man and a woman, is
an essential building block for the Church as well. It's always
been recognized as the fundamental----
Mr. Quigley. Well, look, I respect we will have that
difference. I apologize because we have the time limit
situation.
Bishop Lori. All right.
Mr. Quigley. Same-sex couples I know are in long-term
relationships. They love their kids. They are also involved
with the orderly distribution of property, which has a lot to
do with marriage, and we still allow sterile couples to get
married, and they can't have kids.
But aside from that, we talk a lot too about Islam. It was
interesting that the first aspect of that had to do with laws
equating criticizing Islam with bigotry. But I want to ask all
three of you, if you have time, what would you say to young
Muslims in America, in a country where, unfortunately, I think
the number is about 30 percent of the American public doesn't
think Muslims should be able to become president of the United
States, the last surveys I saw, and that they should have to
wear identification, and that their hate crimes are wildly
high, disproportionate to their population. Respecting their
faith, Bishop, if you were us, what would you say to those
people?
Bishop Lori. Well, the Roman Catholic Church nationally and
internationally conducts dialogues with the Muslim community
and its inter-religious relationships seek to promote
understanding and peace and respect for various religions and
cultures. It would not condone any use of religion to promote
violence, as sometimes happens, but that would be true across
the board.
Mr. Quigley. Reverend May, Mr. May--I'm sorry. Mr. May,
what would you say to young Muslims who are experiencing this
in our country?
Mr. May. I would tell them work hard, become president of
the United States. There's no reason you can't otherwise do so.
Certainly, discrimination in the senses of----
Mr. Quigley. Do you feel bad for them? Do you want to
apologize for what they are going through, kids who are abused
because of their hair coverings or denied jobs?
Mr. May. Well, I suppose if you'd be willing or others
would be willing to apologize for the kind of affront that goes
on to religious values in the public schools, Hot, Safer and
Sexy. I mean, we're going to do this sort of like let's teach
kids how to do these things, that's otherwise----
Mr. Quigley. I am certainly not suggesting that two wrongs
make a right, if you're equating that----
Mr. May. Oh, no, no. But in response to your question----
Mr. Quigley. What do you say to American Muslim children
who face discrimination? Do you apologize to them?
Mr. May. Sorry. We were talking a little bit----
Mr. Quigley. I'm sorry. I apologize. Do you apologize to
anybody whose faith, they are being discriminated against
because of their faith?
Mr. May. If they're, in fact, being discriminated by the
government, absolutely. We abhor that.
Mr. Quigley. How about by anybody?
Mr. Franks. The gentleman's time has expired.
Mr. May. Well, it depends on what you mean by
discrimination, because the idea that people are different is
not a form of discrimination. But certainly I think everybody
should be treated with dignity and respect and kindness. That's
exactly the way I think we get along and make a better world.
Mr. Franks. The gentleman from Ohio, Mr. Chabot, is now
recognized for 5 minutes.
Mr. Chabot. Yeah, I am going to give half of my 5 minutes
to Mr. Jordan because I know we have got votes on the floor
here, I believe. Is that right? Or no? All right. Excellent. I
will still give you half of it.
All right. You know, some interesting points made down
there, and certainly everybody, all religions, ought to be
treated appropriately here in the United States. And as
Chairman of the Middle East and South Asia Committee, I would
make the point that if there are any apologies that are owed,
perhaps the way the Coptics are being treated in Egypt right
now on this very day, Coptic Christians, it is unbelievable
what is happening over there, and the world has virtually
ignored it.
Bishop Lori, you had mentioned about conscientious
objection, and it certainly brought to mind that we allow
people who conscientiously object to war to not have to go over
and fight in the battles of this country as long as they object
to all wars, and that has been ingrained in the way we do
business in this country for a long, long time.
Mr. May, let me ask you quickly. In your written testimony
you discuss university speech codes and the threat they pose to
religious groups on college campuses. Have university speech
codes often gone from protecting non-religious students from
discrimination to actually discriminating against religious
students and religious student groups? And if so, do you have
any examples of that?
Mr. May. Sure. The 9th Circuit reached a decision called
Truth v.--I can't remember the school district's name now, but
a school district. And that would essentially disqualify a
religious club simply because they used the word ``truth.'' It
was felt that using the word ``truth'' in the context of this
Christian club would offend all of the other student groups,
and therefore they couldn't have it. There wasn't any further
explanation than the idea of affront or this lack of
communalism, if you will. And so the 9th Circuit said, well,
that's perfectly appropriate because their job is to make sure
that the environment is as free as possible of harassment.
Mr. Chabot. Thank you. And Bishop Lori, I know you got into
your arguments relative to marriage with Mr. Nadler over there,
and he sort of cut you off, not that he intended to cut you off
but he only had a limited amount of time. He would never cut
anybody off. But did you need any additional time to advise us
on that?
Bishop Lori. I think I'd simply just like to make it clear
that support for traditional marriage between a man and a woman
has nothing to do with, has no resemblance to, racial
discrimination, and it is a great injustice to people who
believe in traditional marriage as a matter of faith and reason
to paint it as such. That's exactly what the Department of
Justice has done in its attack on DOMA.
What we are finding, then, is that those convictions about
marriage are beginning to creep into regs, bureaucratic regs,
and these things are beginning to hamper our ability to
function and to serve. And I think that at the very least, the
Church as individual people and churches that believe in
traditional marriage should be very broadly accommodated. But I
also believe that for the common good of our country, we would
do well to support traditional marriage, and the stronger these
traditional homes are, the more social problems we cut off at
the pass.
There are a lot of data that children in homes of divorced
and single-parent homes have a lot of problems, and that one of
the best things we can do for our kids is to give them a stable
home with a mom and a dad. That does not disrespect anybody. It
just goes to the unique nature of what marriage always has been
and always will be.
Mr. Chabot. Thank you very much, Bishop.
I will yield, although it is not a lot of time, Jim.
Mr. Franks. The gentleman is recognized.
Mr. Jordan. If we go to the other side and back----
Mr. Franks. Certainly.
Mr. Jordan [continuing]. We may have enough time.
Mr. Franks. Certainly, certainly.
Mr. Jordan. Thank you. I will yield back to my colleague if
he wants his remaining time.
Mr. Franks. Recognize----
Mr. Chabot. Okay, I will yield back.
Mr. Franks. Recognize Mr. Scott for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman.
Bishop Lori, I am not sure I quite understood. I am from
Virginia, where traditional marriage was same-race marriage
until those lifetime-appointed liberal activist Federal judges
violated the will of the people and said that you couldn't do
that anymore, you had to allow different-race marriages.
Now, we redefined marriage at that point. Was that a bad
thing?
Bishop Lori. You did not redefine marriage. You simply
recognized the natural right of a man and a woman who happened
to be of two different races to marry.
Mr. Scott. There was some very devoutly religious people
that felt that traditional marriage did not include mixed-race
marriages.
Bishop Lori. Yes, but it was not a redefinition of
marriage.
Mr. Scott. Reverend Lynn, was that a redefinition of
marriage?
Reverend Lynn. That was a redefinition of marriage, and it
could happen again. And as we talk about marriage, I find
myself in an interesting position. People talk about these
theories. I am an ordained minister in the United Church of
Christ, and Mr. King, we only have two sacraments. That would
be communion and baptism. We have three, and matrimony.
As a United Church of Christ minister, I cannot perform
marriages that I happen to want to perform. I have a list of
people, literally, who would love to have me perform their
weddings, but they can't because state law prohibits that. They
cannot be married.
I think a redefinition of this would, among other things,
allow the clergy, like myself, of whom there are many in this
country who would like to and feel it important to perform
same-sex marriages, we would finally have the right to do so.
So my conscience is violated when I am denied by the power
of the state to perform the very marriages that people want in
order to form the kind of unity, and families with adopted
children in many instances, that do serve this community and
this country very well.
Mr. Scott. Now, Reverend Lynn, if the congregation gets
together and raises money to advance their religion, would
employment discrimination in favor of people of their religion
that understand the religion that they are trying to advance,
does employment discrimination based on religion make sense?
Reverend Lynn. Yeah, I would oppose the idea. I believe
that you hire the best people for the job that you're seeking
to hire for. But on the other hand, if this is all private
money, if this is the money from the collection plate, I think
the courts are pretty clear they can then hire in many, if not
all, positions for--on the basis of religion. The calculus
changes when it comes to cash coming from all the taxpayers.
Mr. Scott. And if they are using it for congregational
purposes to advance their religion, it makes sense that people
would understand the religion they are trying to advance. How
does the calculation change if you are using Federal money?
Reverend Lynn. Well, because I think that the great
strength of American religion is that it has been voluntary. We
depend upon the contributions that are made by like-minded
people. We have not until recently assumed that we deserve as
churches or religious institutions to somehow go to the same
trough to receive Federal money that some other organization
does.
I think the great strength of religion in this country is
that it does seek its funding from private sources. When it
goes to the government and asks for its dollars, then I think
collateral to it is a recognition that it must obey its laws,
including its civil rights standards, which oppose making
decisions in employment based on religion.
Mr. Scott. And if a devoutly religious businessman wanted
to discriminate, why should he not be able to discriminate in
violation of civil rights laws with his personal money?
Reverend Lynn. Well, I think, first of all, he can make
contributions to anybody, including entities that might
discriminate someplace down the road. But I think this whole
idea of individuals being able to exercise their religious
conscience on third parties is a very dangerous trap. That's
why I don't think we should be talking about the so-called
``right of conscience'' of receptionists in a hospital to
refuse to schedule someone to have an abortion, even if he or
she doesn't approve of it. I think that pharmacies should not
allow every pharmacist to decide they will not dispense certain
drugs which may or may not be used, as the Bishop mentioned, as
abortifacients, which is the way to characterize almost all
contraception, as abortion-inducing, expanding the exemptions
that already exist in law.
So I think it's a dangerous track, Congressman Scott, to go
down to assume that judgments based on religion can be made by
individuals, any individual who claims I have a religious basis
for doing so. We have to be very careful about that standard.
Mr. Franks. And I thank the gentleman.
And I now recognize the gentleman from Ohio, Mr. Jordan.
Mr. Jordan. Thank you, and I apologize--I walked in late--
if this question has already been asked. But Mr. May, what is
the biggest current threat to religious freedom in the country?
Is it speech codes? Is it employment law? Is it employment
discrimination? Is it the redefining of marriage? What would
you say, if you had to rank order, which is the most important?
Which is the biggest threat?
Mr. May. Well, obviously it's a wide horizon, I'm sorry to
say, but I think the first is in the area of conscience, and I
think it is something that is so important that it's been not
only respected at times of war in our country when soldiers
can't move forward and in contravention of their faith kill, as
it were, we respect it there, and yet we somehow don't want to
do so when we find individuals in other circumstances that
present the exact same kind of moral dilemma for them.
I also think that it is in the context of what we do as a
society about same-sex marriage. I mean, there are almost 40
states in this country already have constitutional amendments
or laws essentially defining marriage and limiting it because
of the benefits of that specific kind of marriage, one man, one
woman, and the hope of children. It's good for society, it's
good for ordered liberty, it's good for freedom. That's why
states recognize it. And if we turn it on its head and now say
these 40 states are engaging in a kind of discrimination, it
really misses the point.
Mr. Jordan. Let me pick up right where you were there. Is
it true that some organizations are now defining groups who
want to make sure marriage remains what marriage has always
been, want to define those groups as hate groups? Is that
happening out there right now?
Mr. May. Oh, absolutely.
Mr. Jordan. And can you give me some specific organizations
who are now saying if you want to keep marriage the way
marriage has always been, somehow you are a hate group?
Mr. May. Well, I think that the Catholic Church is probably
the first example of being criticized for it. But groups like
the American Civil Liberties Union, for example. I'd have to
ask Barry whether or not his group has taken that point of
view. But the stridency of the very idea----
Mr. Jordan. I have been told the Southern Poverty Law
Center has said the same thing. And when they do that, would
you argue that that is a chilling effect on religious
expression?
Mr. May. Oh, without question, because what it does is it
essentially, it cuts off any kind of dialogue. I mean, we care
about in this country discrimination that's invidious. The idea
is to say you can't do this because of who you are or what you
represent, not the idea that we segregate ourselves because of
the values and the morals that we hold, and certainly religious
expression is the first among them.
Mr. Jordan. Let me ask you about one other idea, and then I
know we have got to go vote. But one other question: In our
state, back when I first got involved in public service, we
actually passed a school choice law, and we said, in the City
of Cleveland, that we would allow kids, at that time
kindergarten through 2nd grade, to get a scholarship. It was
amazing. It was worth $2,000, and we were spending at the time
in Cleveland Public Schools about $7,000 per pupil, and we
allowed kids to get that scholarship to go to the school that
their parents thought they would get the best education. The
vast majority, almost all of them, went to Catholic schools in
the Greater Cleveland area. It was challenged, as you would
expect, every step, every court, state-level court, Federal-
level court. It went all the way up, and it was challenged on
the Establishment Clause. It was ultimately held to be
constitutional.
Now, I just want your thoughts on it. Do you think that
that school choice program, as the courts did, meets the
Establishment Clause requirements, and is something that would
be--something that is constitutional?
Mr. May. Well, yes. I think the Supreme Court got it right
10 years ago when it evaluated the case and upheld it,
recognizing that, look, if we go through a Lemon type of
evaluation, we'll recognize first off that this is to
accomplish a secular purpose. The secular purpose is to provide
the best education possible.
The second is we're not intending this to otherwise
advantage faith over non-faith. It's rather send your kid where
they can learn the ABC's and how to add, et cetera.
And last, it doesn't otherwise invite the entanglement of
the government into the decisions that parents are making for
their children.
So I think that voucher cases in that context make perfect
sense and are constitutionally protected.
Mr. Jordan. I think it is always interesting to point out
that specific situation.
Reverend Lynn. If the Congressman would----
Mr. Jordan. Just 1 second. The initial sign-up day, there
were 2,000 spots worth $2,150, and again they were having spent
on them in the Cleveland Public Schools approximately $7,000.
But thousands of parents, much more than the available spots,
lined up to get a chance to get one of those scholarships and
get some freedom to get to a school where they could get an
education. I mean, the power of that I think is--that example
is just pretty powerful.
Mr. Lynn, I have got a few seconds, but go ahead.
Reverend Lynn. Yeah. I just--it's kind of like a Mitt
Romney-Rick Perry moment. I have to say we don't make lists of
hate groups. We're not involved in that whatsoever.
Mr. May. I'm glad to hear that.
Reverend Lynn. And I'm--but I am really shocked by some of
the comments that my friend, Colby May, has made. We've had
many debates over the years. Of all the things that have come
up today, in my testimony I talked about the ACLJ's opposition,
filing a lawsuit to stop the construction of a mosque on
property owned by this--it's actually a community center, owned
by a Muslim group in New York City. I thought we passed the
Religious Land Use Act, among other things, to make sure that
we couldn't overstate, for example, historical significance and
use that to trump the construction of property to be used for a
religious purpose. But when Mr. May and his group filed a
lawsuit, I truly was shocked. I mean, I usually don't agree
with him, but I was shocked by this one because it seems to be
so inconsistent with his whole rhetoric of we believe in
religious freedom for everyone, we support everybody's right.
Apparently not if you're a Muslim in New York.
Mr. Franks. Mr. May, would you like to respond?
Mr. May. Oh, yes, sir, I would. I'll direct my comments to
the Committee because I know I'm not supposed to direct it to a
fellow witness. But the reality is that I wish Barry would get
it right, and he just doesn't seem willing to do so, and I
don't know if it's purposeful on his part or not.
But our case in New York, Brown v. The Landmark
Preservation Commission, does not involve the Religious Land
Use Institutionalized Persons Act. He should know that.
What we are talking about is whether or not, under the
unique circumstances of Ground Zero, this particular facility
should be designated as a monument to the 9/11 catastrophe.
And, in fact, the people that are involved were first
responders. Mr. Brown was a first responder, and he is very
passionate about making sure that we don't forget and that, in
fact, those buildings that are in the area can otherwise be
properly landmarked and kept as such.
We have never argued that the current mosque activity that
goes on there should be stopped under any circumstances. It is
rather to determine whether or not, in the unique circumstances
here, this should be a landmark. It is not about religion. He
knows it, and why he continues to say that baffles me.
Mr. Franks. Well, it sounds like you are going to get the
last word here today, Mr. May. And I want to thank all of the
people who attended, and all of the witnesses, and all of the
Members here. The subject is one of profound consequence.
Nearly every law that we have is based on some religious
precept, so we had better get it right.
Without objection, all Members will have 5 legislative days
to submit to the Chair additional written questions for the
witnesses, which we will forward and ask the witnesses to
respond to as promptly as they can so that their answers may be
made part of the record.
Without objection, all Members will also have 5 legislative
days with which to submit any additional materials for
inclusion in the record.
And with that, again, I thank the witnesses, and I thank
the Members and observers, and this hearing is now adjourned.
[Whereupon, at 3:58 p.m., the Subcommittee was adjourned.]

A P P E N D I X

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Material Submitted for the Hearing Record

Response to Post-Hearing Questions from William C. Lori,
Bishop of Bridgeport, CT

Letter from John C. Hagee, Cornerstone Church

Letter from Rajdeep Singh, Director of Law and Policy, The Sikh
Coalition

Prepared Statement of Rev. Dr. C. Weldon Gaddy,
President of Interfaith Alliance

Prepared Statement of Suhag A. Shukla, Esq., Managing Director/Legal
Counsel; Samir Kalra, Esq., Director and Senior Fellow, Human Rights;
and Nikhil Joshi, Esq., Member, Board of Directors, the Hindu American
Foundation

Prepared Statement of Joe Solmonese, President, Human Rights Campaign

Prepared Statement of Marc D. Stern, Esq., Associate General Counsel
for Legal Advocacy, the American Jewish Committee (AJC)

Letter from Paul J. Kurtz, Chairperson, and Normal Allen, Jr., Director
of International Outreach, the Institute for Science and Human Values
(ISHV)

Letter from Jon O'Brien, President, Catholics for Choice

Letter from the Most Reverend Timothy M. Dolan, Archbishop of New York

Article titled ``Battle flare between White House. Catholic Groups,''
by Jerry Markon, The Washington Post